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RINEHART V RINEHART, 2000 Supreme Court of the No. CVA98-020. April 11, 2000. Appeal from the Superior Court of OPINION CRUZ. [1] On June
27, 1998, the trial court declared a final judgment of divorce between Robert
and Mary Rinehart. Plaintiff-Appellant/Cross-Appellee Robert H. Rinehart,
hereinafter "Robert," appeals the trial court's decision to allow
telephonic testimony during the bench trial. Robert also appeals the trial
court's order that he repay the community for one-half of the money expended for
repayment of his student loan and the trial court's order that an account, which
his wife placed in both their names, be deemed her separate property. On cross
appeal, Mary S. Rinehart, hereinafter "Mary," appeals the trial
court's decision to allow this judgment to be paid without interest. Based upon
the following discussion, the trial court's decision is affirmed in part,
reversed in part, and remanded in part consistent with this opinion. I. FACTUAL AND PROCEDURAL BACKGROUND [2] Robert
and Mary were married on February 6, 1988. Their first and only child was born
on April 29, 1991. In July 1996, the family moved to [3] In late
June 1997, Mary flew from Guam to FN1. Mary
stated at the trial court that she believes she left [4] Prior to
trial, Mary's counsel advised the court that Mary would not return to [5] Robert
takes issue with the trial court's decision that his student loan is a separate
debt and its order that he must reimburse Mary $7,268 for one-half of the amount
that the community paid on the loan. Robert also expresses concern that the
trial court found the Farmer's & Mechanic's Bank deposit, an account that
Mary put in both of their names once they were wed, to be Mary's separate
property. Mary argues that the trial court failed to include an account in its
findings of fact and conclusions of law and that she should be given half the
value of the account, plus interest. [6] On May
26, 1998, Robert filed a motion to reconsider the ruling on the admissibility of
the telephonic testimony as well as the monetary judgment. The lower court
rejected both Robert's and Mary's claims on June 27, 1998. Robert filed this
appeal and Mary subsequently filed a timely cross-appeal. II. ANALYSIS AND APPLICATION OF LAW [7]
This court has jurisdiction over this appeal pursuant to Title 7 GCA §§
3107(a) and 3108(a), (1994). We review the trial court's decision on the
telephonic testimony for abuse of discretion. See Bonamarte v. Bonamarte, 263 A. Telephonic Testimony [8] Title 6
GCA § 7301, (1994) provides that "[t]he testimony of a witness may be
taken by affidavit, by deposition or by oral examination." Mary argues that
telephonic testimony should be considered a type of oral examination and that
she therefore complied with this rule. She argues that the facts in this case
and the gray areas within the existing laws would allow for telephonic
testimony. Robert argues that the courts should interpret this rule strictly.
Based upon analyses of legal rules and case law, this court holds that the trial
court abused its discretion by allowing Mary to testify telephonically. [9] In
addressing this contention, we see fit to follow the maxim expressio unius est
exclusio alterius. This rule of statutory construction means that if an option
is expressed in a law, all other options not expressed were intentionally
excluded. See generally SUTHERLAND STAT. CONST. § 47.23 (5th ed.1992). Courts
have been warned to use this maxim prudently. Abdullah v. American Airlines,
Inc., 181 F.3d 363, 372 (3rd Cir.1999) ("it should be taken with a grain of
salt--or even better, with a grain of common sense"); Bowers v. Town of
Smithberg, 173 F.3d 423, 1999 WL 51878 at ----3 (4th Cir.1999) (mentioning that
it should be "only used with caution"). The phrase is meant to act as
an interpretive rule, rather than act as a deliberate law. [10] Federal
Rule of Civil Procedure 43(a) concludes, "The court may, for good cause
shown in compelling circumstances and upon appropriate safeguards, permit
presentation of testimony in open court by contemporaneous transmission from a
different location." In addition, the notes to FRCP 43(a) provide that,
"[c]ontemporaneous transmission of testimony from a different location is
permitted only on showing good cause in compelling circumstances."
Fed.R.Civ.P. 43(a) Advisory Committee Notes. [11] On the
contrary, Guam's Rule 43(a) only states, "In all trials the testimony of
witnesses shall be taken orally in open court, unless otherwise provided by the
laws of [12] Despite
modern tendencies to rely upon the Latin phrase sparingly, courts have continued
using the idea to the present. Leatherman v. Tarrant County Narcotics,
Intelligence, and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163,
122 L.Ed.2d 517 (1993); Sullivan v. Hudson, 490 U.S. 877, 891, 109 S.Ct. 2248,
2257-58, 104 L.Ed.2d 941 (1988); Tennessee Valley Authority v. Hill, 437 U.S.
153, 188, 98 S.Ct. 2279, 2289, 57 L.Ed.2d 117 (1978). In a U.S. Supreme Court
case which noted the critique of the rule, the Court still applied the rule.
Pauley v. Beth Energy Mines, Inc., 501 [13] The
expressio rule applies to other ideas in Mary's argument. Mary notes that Guam's
evidentiary rules regarding testimony were based upon [14] Robert
argues that telephonic testimony in this legal proceeding was improper and
prejudicial to his case because Mary could not be shown any documents or
exhibits, that the court could not assess her demeanor, and that his counsel was
not allowed to properly cross-examine her. Transcript, vol. I, p. 18 (Bench
Trial, Feb. 6, 1998). In other courts, parties have argued that an individual
providing testimony over the telephone cannot be sworn in properly and may be
getting coached by a third person unknown to those actually in court. See
Michael J. Weber, Annotation, Permissibility of Testimony by Telephone in State
Trial, 85 A.L.R.4th 476 (1991). [15] Robert
would like this court to follow a [16] We
believe that all the conclusions in Bonamarte apply to this case. While Robert
makes no claim that Mary was being coached on the other side of the phone or
that the person testifying was not Mary, his right to confront the witness was
reduced by Mary's physical absence in court. Mary maintains that a deposition or
a videotaped testimony would have just as many credibility flaws as a
simultaneous telephonic testimony. Though we concur that no testimonial method
lacks flaws, we are required to uphold laws as the legislature wrote and
intended them. The Bonamarte court sympathized with the appellee, but still
ruled that it must uphold the law as it is written. [17] The
Bonamarte court did not bar all telephonic testimonies. Instead, it stipulated
that they should be allowed only in "special or exigent
circumstances." FN2. The
case at hand does not cause this court to specifically address a situation where
the parties stipulate to the use of telephonic testimony. Furthermore, no
analysis of exigent circumstances was done due to the fact that the parties did
not question the parameters of such an exception. Therefore, the court will not
discuss any possible exception to the general rule disallowing the admissibility
of telephonic testimony at this time. [18] In her
brief, Mary warns that reversing the trial court's decision may create a
slippery slope in which on-island spouses could tamper with the legal rights of
off-island spouses. This concern is especially important given the number and
transience of military families on this island. [FN3] The facts operating in
Mary's and Robert's divorce as well as Guam's distance from the continental
United States demonstrate why island legislators may want to amend the law to
allow for telephonic testimony. Nevertheless, this method is not included at
this time and the court does not have the power to proceed as it if were. FN3. About
one-tenth of this island's population consists of military personnel and their
dependents. In 1996, B. Student Loan. [19] We next
address the issue of whether the court erred in reimbursing the community for
the amount paid on Robert's prenuptial student loan. In Bliss v. Bliss, 127 [20] We find
that the same reasoning should apply to the Rinehart divorce. Absent proof of
the enhancement to Robert's separate property, there should be no reimbursement
to the community. See id. at 1083. In the instant case, there was no evidence in
the record of such an enhancement. Therefore, any reimbursement on these grounds
would be improper. In addition, we note that the Bliss court recognized that
"there may be egregious circumstances of unfair dealing which would result
in reimbursement to the community, even if no separate asset was enhanced."
[21] Based
on the foregoing, the lower court erred in its decision to reimburse the
community in the amount of $7, 268 as one-half of the amount paid by the
community. C. FMB Account [22] When
Mary and Robert were wed, Mary put her Farmer's & Marketing Bank Account,
hereinafter "FMB account," in both of their names. The trial court
ruled that this account remains Mary's separate property. Rinehart, DM 0761-97 (Super.Ct.
[23] In
several cases, we have held that if a party mentions a matter but then fails to
make a complete legal argument on the issue, then we will refuse to analyze the
matter. See Seafood Grotto v. Leonardi, 1999 Guam 30, ¶ 13; People v. Quinata,
1999 D. Interest on the Judgment [24] By way
of Mary's cross appeal, we now address the issue of whether, as a matter of law,
the trial court had the power or discretion to allow Robert to pay sums set
forth in the judgment without interest. [25] Title
18 GCA § 47106, (1992) sets forth the rate of interest to be paid on judgments.
In its entirety, it provides: § 47106.
Legal Rate of Interest. The rate of
interest upon the loan or forbearance of any money, goods or things in action,
or on accounts after demand or judgment rendered in any court of the territory,
shall be six percent (6%) per annum but it shall be competent for the parties to
any loan or forbearance of any money, goods or things in action to contract in
writing for a rate of interest not exceeding the rates of interest specified in
Title 14 of this Code. 18 GCA §
47106 (emphases added). [26] The
lower court ordered that: [i]n full
settlement of the community division, Robert will pay over to Mary the sum of
$10,893. At Robert's option he may structure payment as follows: a) no less than
$893 to be paid immediately; b) the balance to be paid in consecutive monthly
installments of not less than $250 until paid in full. No interest shall accrue
if payments are timely made. Rinehart, DM
0761-97 (Super.Ct. [27] Based
upon a plain reading of the relevant unambiguous statute the trial court
decision to allow installment payments without interest was in error. III. CONCLUSION [28] In
conclusion, the trial court abused its discretion in allowing Mary to testify
over the telephone. We find that the lower court's decision to reimburse the
community in the amount of $7,268 as one-half of the amount paid by the
community was in error. We deem the holding on the FMB account affirmed for lack
of an argument to the contrary. Additionally, based upon a plain reading of the
relevant unambiguous statute, the trial court's decision to allow installment
payments without interest was also in error. In accordance with these
determinations, the lower court's decision is AFFIRMED IN PART, REVERSED IN
PART, and REMANDED IN PART for proceedings consistent with this opinion.
For all questions about Guam Divorces, custody or support, ask for attorney Ron Moroni. 1-866-472-1540.
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