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V CAMACHO, 1997
Supreme Court of the
Marie Camacho appeals from a Decision and Order of the Superior Court, the
Honorable Alberto C. Lamorena, III, presiding, finding that a separation
agreement between Appellant and her husband, Appellee Anthony Camacho, had been
rescinded by implication. Finding no reversible error, we affirm the Decision
and Order of the trial court.
Camacho and Anthony Camacho have been married since 9 May 1987. They separated
on 12 October 1993 and executed a separation agreement on 21 October 1993. The
separation agreement specified how the Camachos' assets and liabilities were to
be divided. According to the agreement, the Camachos' home is the separate
property of Mrs. Camacho. The Camacho's community property consisted of two
automobiles, an Acura Vigor and a Mazda Truck, and the household appliances and
furniture. According to the separation agreement, the furniture, appliances, and
the Acura Vigor were to go to Mrs. Camacho, and the Mazda Truck was to go to Mr.
Camacho. Also under the agreement, Mrs. Camacho was to assume all of the
community debts, and Mr. Camacho was to pay $1,000.00 per month in child
support. The separation agreement was incorporated into a Judgment of Separate
Maintenance, "binding between these parties," signed by Judge Lamorena,
and filed on 21 October 1993 in case number DM0955-93. The judgment was prepared
by counsel for Mrs. Camacho.
Approximately two months after the Judgement of Separate Maintenance was filed,
Mr. and Mrs. Camacho reconciled and resumed married life for nearly two more
years, only to separate again on 14 August 1995. Mr. and Mrs. Camacho are in
dispute as to what took place during the two year period of reconciliation.
According to Mr. Camacho, they verbally agreed to disregard the separation
agreement, and to carry on as though it never existed. Mr. Camacho claims that
he helped pay the debts that Mrs. Camacho agreed to pay under the agreement,
including the mortgage on the house, and that the parties jointly incurred new
loans in order to pay these community debts. Mr. Camacho further claims that
certain loan payments were being deducted directly from his paychecks.
Camacho, on the other hand, claims that, during the two year reconciliation
period, the separation agreement was never discussed. She claims that Mr.
Camacho has never contributed toward any mortgage payments on the house, which
she claims has always been her separate property, and that the couple did not
jointly incur new debts during the reconciliation period.
the couple separated for the second time in August of 1995, Mrs. Camacho filed
for divorce with the Superior Court, on 17 October 1995. In her divorce
complaint, Mrs. Camacho requested that the court grant the divorce and also that
the court approve the separation agreement, executed and incorporated into a
judgment two years prior. The divorce case, DM0924-95, was assigned to Judge
Manibusan. Mr. Camacho's Answer to the divorce complaint included the defense
that the separation agreement had been mutually rescinded by the parties through
their actions during the reconciliation period. On 13 November 1995, Mrs.
Camacho filed, in DM0924-95, an Application for Order to Show Cause ("OSC"),
in which application she alleged that Mr. Camacho has wilfully and wrongfully
refused to make child support payments in the amount provided for in the
hearings were conducted on the Application for Order to Show Cause before Judge
Manibusan. At the first hearing, on 22 November 1995, Judge Manibusan heard the
arguments from both sides, and issued a temporary child support order in the
amount of $290.85 per month. Judge Manibusan scheduled another hearing to give
Mrs. Camacho time to counter Mr. Camacho's affidavit regarding the alleged
rescission of the separation agreement.
 At the
second hearing, on 13 December 1995, Judge Manibusan refused to take any action
to either approve or invalidate the separation agreement because, according to
Judge Manibusan, the determination of that issue requires a trial. The judge
instructed counsel for Mrs. Camacho that if he wanted an Order to Show Cause to
enforce the Judgment of Separate Maintenance signed by Judge Lamorena in
DM0955-93, then counsel would have to file an Application for OSC in that case
before Judge Lamorena. Counsel for Mrs. Camacho agreed to do so.
 On 23
February 1996, Mrs. Camacho filed an OSC Application before Judge Lamorena in
DM0955-93. Her application was nearly identical to the one filed before Judge
Manibusan, and added only that under the separation agreement, she agreed to
assume liability for certain jointly incurred debts. A hearing on this OSC
Application was conducted before Judge Lamorena on 2 April 1996. At this
hearing, Judge Lamorena heard arguments from both sides on the issue of whether
the separation agreement had been mutually rescinded by implication. The
validity of the Judgment of Separate Maintenance was never questioned by counsel
or by the court at this hearing.
addition to her arguments in support of the validity of the separation
agreement, Mrs. Camacho represented to the judge that she is only seeking
payments to cover the periods of separation, not including the reconciliation
period. Mrs. Camacho further stated that Mr. Camacho had made some child support
payments pursuant to the temporary order of Judge Manibusan, in an amount
totaling approximately $1,000.00. The court took the matter under advisement,
and issued a Decision and Order, filed 11 September 1996.
 In its
Decision and Order, the trial court held that the separation agreement is
invalid because the actions of the parties subsequent to execution evidenced an
intent to rescind the agreement. The Judge cited Lo Vasco v. Lo Vasco, 46
Cal.App.2d 242, 115 P.2d 562 (Cal.Dist.Ct.App.1941) to support the conclusion
that the agreement had been mutually rescinded. The court also rejected an
argument from Mrs. Camacho that the agreement expressly provides that neither
party may "alter, amend, or modify our marital property agreement contained
in this instrument, except by an instrument in writing executed by both of
us." According to Judge Lamorena, "[n]owhere does it state that a
rescission, cancellation or termination of the Agreement has to be in
writing" (Camacho v.. Camacho, DM0955-93 (Super. Ct. Guam Sept. 11, 1996)
at 2. The Decision and Order concludes that the separation agreement is invalid
and that "the order [of Judge Manibusan] to reduce the child support to
$290.85 is upheld until the time of the dissolution." [FN2] The Decision
and Order makes no mention, however, of the effect of the invalid agreement upon
the court's own prior judgment incorporating the agreement. Notice of appeal was
timely filed. [FN3]
Despite the fact that the 11 September Decision and Order disposed of all of the
issues before the court, the last sentence of the Decision and Order sets a
scheduling conference for 27 September 1996 at 10:30 a.m. It is unclear from the
record why the court found it necessary to order this scheduling conference.
Court notes that Rule 4(a) of the Rules of Appellate Procedure for the Supreme
Court of Guam specifies that filing of the notice of appeal is to be no later
than thirty (30) days from the entry of judgment. Furthermore, Title 7
Appellant raises two arguments regarding the Judgment of Separate Maintenance
which incorporated the terms of the separation agreement. Specifically,
Appellant argues that, unlike a separation agreement, a Judgment of Separate
Maintenance may not be rescinded by implication. In addition, Appellant argues
that the trial court erred in lowering the child support amount incorporated
into the judgment without proper notice or hearing. We need not address these
two arguments, however, because we find the Judgment of Separate Maintenance in
this case to be invalid.
Alimony, Permanent Support. When an action for dissolution of marriage is
pending, the court may, in its discretion, require the husband or wife, as the
case may be, to pay as alimony any money necessary to enable the wife, or
husband, to support herself and her children, or to support himself and his
children, or prosecute or defend the action. When the husband or wife willfully
deserts the wife or husband, or when the husband or wife has any cause of action
for dissolution of marriage as provided in §8203 of this Title [[[adultery,
extreme cruelty, willful desertion, willful neglect, habitual intemperance, or
conviction of felony], he or she may, without applying for dissolution of
marriage, maintain in the Superior Court an action against her or him for
permanent support and maintenance of himself or herself or of himself and
children or of herself and children. When the husband willfully fails to provide
for the wife, she may, without applying for dissolution of marriage, maintain in
the Superior Court an action against him for permanent support and maintenance
of herself or of herself and children.
pendency of any such action the court may, in its discretion, require the
husband or wife, as the case may be, to pay as alimony any money necessary for
the prosecution of the action and for support and maintenance, and execution may
issue therefor in the discretion of the court. The court, in granting the
husband or wife permanent support and maintenance of himself or herself, or of
himself and children or herself and children, in any such action, shall make the
same disposition of the community property and of the homestead, if any, as
would have been made if the marriage had been dissolved by the decree of a court
of competent jurisdiction. The final judgment in such action may be enforced by
the court by such order or orders as in its discretion it may from time to time
deem necessary, and such order or orders may be varied, altered, or revoked at
the discretion of the court. 19 GCA § 8402 (emphasis added).
stated previously, 19 GCA § 8402 is re-codification of Guam Civil Code § 137,
which was adopted from former § 137 of the California Civil Code. As is often
the case with Guam code provisions, due to changes in California law, Guam Civil
Code § 137 no longer has a counterpart in the California Civil Code.
Irreconcilable differences are now grounds for both divorce and legal separation
 In the
instant case, neither of these two basic elements of a separate maintenance
action are present. First, from the Complaint for Separate Maintenance, filed on
21 October 1993, that led to the Judgment of Separate Maintenance, there are no
allegations of any grounds whatsoever for the action. In fact, the only
statement of a reason for the separation is at the bottom of page one of the
separation agreement, where it states that "[u]nhappy differences have
arisen between us as a result of which we have agreed to separate and hereafter
live permanently apart." Even if this were one of the grounds for divorce
or separation provided in § 8203, which it is not, it still should have been in
the complaint, or, at least, in the Judgment of Separate Maintenance.
 It is
possible that the trial court in this case allowed judgment to be entered
without any alleged grounds, based on Mr. Camacho's Appearance and Consent
Declaration, filed with Mrs. Camacho's Complaint for Separate Maintenance. In
the declaration, Mr. Camacho states, among other things, the following:
I waive the
time allowed by law to answer the Complaint, and consent that the Court enter a
default and default judgment against me for a Separate Maintenance and/or other
relief requested in the Complaint. I waive further notice of proceedings, and
waive the filing of findings of fact and conclusions of law.
stipulate and agree that there exists adequate grounds as stated in the
Complaint for Separate Maintenance and other requested relief. I agree that this
matter go forward as an uncontested Separate Maintenance without hearing, based
on this consent. I waive any objections to entry of default and/or entry of
default judgment which I may be able to raise under the Soldier and Sailor's
Civil Relief Act.
Clearly, from Mr. Camacho's consent declaration, he did not intend to contest
any portion of Mrs. Camacho's Complaint against him for separate maintenance.
The fact that Mr. Camacho consented, however, does not remove the statutory
requirement that Mrs. Camacho allege one of the specified grounds for the
action. Mr. Camacho's stipulation that adequate grounds exist "as stated in
the Complaint for Separate Maintenance," is of no help because no grounds
were stated in the complaint.
Camacho's consent declaration, and the "unhappy differences" language
of the separation agreement suggest that the parties may have had in mind a
court approved separation by consent. Separation by consent, however, is only
mentioned in Title 19 in order to make clear that such a separation is not a
valid ground for a divorce or separate maintenance action. 19 GCA § 8210.
Separation by Consent; Not Desertion. Separation by consent, with or without the
understanding that one of the parties will apply for a dissolution of marriage,
is not desertion.
As § 8210
indicates, parties may separate by consent without fear of being accused of
desertion, and thereby creating grounds for divorce or separate maintenance.
There is no need, however, for parties to come to court to effectuate this type
of separation, and, for this type of separation, there is no need to comply with
the requirements of § 8402.
the facts of this case, the parties separated by consent and sought court
approval of a separation agreement. Aside from "unhappy differences"
stated in the separation agreement, however, there were no grounds for the
action alleged in the complaint, in the agreement, or in the Judgment of
Secondly, the Complaint for Separate Maintenance does not include a request for
court ordered support of Mrs. Camacho. In fact, page seven of the separation
agreement contains a paragraph that expressly waives any claim of spousal
support. In addition, the Judgment of Separate Maintenance states only that the
"spouses are hereby authorized to live separate and apart from each other,
that is, from bed and board, without dissolving their marital union," and
that "[t]he Separation Agreement between the parties, dated OCTOBER 21,
1993, which provides for the division of their community and/or quasi-community
property, community debts and/or liabilities, custody of the minor child, and
child support, is hereby approved by the Court and made valid and binding
between these parties." Nowhere in the judgment does the court order that
Mr. Camacho separately support and maintain Mrs. Camacho, the very purpose of a
separate maintenance judgment.
interpreting the source of
is not for any certain amount of maintenance but that the court "grant a
decree of separate maintenance" and further asks determination of right in
the property and an accounting. This complaint seems predicated on the idea that
there can be a "decree of separate maintenance" independent of any
need for support, in the manner of a decree for separation from bed and board.
However such a limited divorce is unknown in
P.2d at 763 (emphasis added).
arguably, a provision for child support might be deemed an indirect request for
spousal support, the language of § 8402 seems too specific to allow such a
broad interpretation. According to the language of § 8402, either spouse may,
under certain specified circumstances, maintain an action against the other
"for permanent support and maintenance of himself or herself or of himself
and children or of herself and children." 19 GCA § 8402 (emphasis added).
Nowhere in the section does it authorize a separate cause of action solely for
support and maintenance of children. The California Legislature addressed this
issue in 1941 by amending former California Civil Code § 137, from which the
Section 137 has since been repealed in
are, of course, other sections of Title 19 that authorize causes of action for
child support. 19 GCA §§ 4105, 8403, 8405, 8406. As the language of § 8402
indicates, however, the purpose of an action for separate maintenance is to
protect a spouse against desertion or willful failure, on the part of the other
spouse, to provide support to the complaining spouse. If there is no need for
spousal support, there may still be a basis for a cause of action for child
support, but there is no basis for an action for separate maintenance.
according to the provision of
Appellant maintains that the trial court erroneously applied the law in arriving
at the conclusion that the separation agreement had been rescinded by
implication. We review the trial court's application of law de novo.
a. Application of Case Law on Rescission by Implication
Appellant contends that the case the trial court relied upon, Lo Vasco v. Lo
Vasco, 46 Cal.App.2d 242, 115 P.2d 562 (Cal.Dist.Ct.App.1941), is inapplicable
to the case at bar. We disagree.
trial court relied upon Lo Vasco, a
Appellant also argues that mutual rescission of a separation agreement by
implication requires more than just a showing that the parties reconciled.
Appellant correctly cites In re Marriage of Broderick, 209 Cal.App.3d 489, 257
Cal.Rptr. 397 (Cal.Dist.Ct.App.1989), and several other
has been held that reconciliation and resumption of marital relations may cancel
the executory provisions of a property settlement agreement (Tompkins v.
Tompkins (1962) 202 Cal.App.2d 55, 59-60 [20 Cal.Rptr. 530]; Harrold v. Harrold
(1950) 100 Cal.App.2d 601, 609 [224 P.2d 66]), it is well settled that proof of
reconciliation alone does not abrogate the agreement (Bluhm v. Bluhm (1954) 129
Cal.App.2d 546, 550 [277 P.2d 421]). To avoid the contract on this basis, there
must be a clear indication that by reconciling the parties intended to annul the
agreement and restore their earlier property rights. Such intent can be proven,
for example, by the destruction of the document containing the agreement,
execution of reconveyances or restoration of the control of the property to one
who formerly exercised it. (Plante v. Gray (1945) 68 Cal.App.2d 582, 588, [157
P.2d 421], 33 Cal.Jur.3d, Family Law, § 529, p. 104.) This is particularly true
where the parties have received or accepted the benefits of the settlement
agreement. (Bluhm v. Bluhm, supra, 129 Cal.App.2d at p. 550, 277 P.2d 421; see
also Crossley v. Crossley (1950) 97 Cal.App.2d 627 [218 P.2d 132].) At any rate,
the issue of whether the parties intended to abrogate their property agreement
by resuming their mutual marital responsibilities constitutes a factual
determination and the finding of the trier of fact will not be overruled if
supported by the record. (Tompkins v. Tompkins, supra, 202 Cal.App.2d at p. 59,
20 Cal.Rptr. 530; see also Morgan v. Morgan, supra 106 Cal.App.2d at p. 193, 234
257 Cal.Rptr. at 401.
Appellant appears to be correct in relying upon Broderick for the proposition
that reconciliation of the parties alone is insufficient to support a finding of
mutual rescission of a separation agreement. Neither Broderick nor any of the
cases cited therein, however, undermines the holding in Lo Vasco, the case cited
by the trial court. In Lo Vasco, more than just the reconciliation led the court
to conclude that the agreement had been rescinded. Likewise, the trial court, in
the instant case, relied not just upon the parties' reconciliation, but also
upon a finding that community funds were used to pay debts assigned solely to
Mrs. Camacho under the agreement, and upon a finding that, since executing the
agreement, Mr. Camacho has obtained several loans in order to pay debts Mrs.
Camacho agreed to pay.
 As in
all of the cases cited by both parties, courts base the decision on this issue
on a variety of facts that indicate the parties' intent that the separation
agreement no longer be in force. The trial court, in the instant case, took this
same approach, and thus did not, as Appellant contends, erroneously apply the
law relating to separation agreements.
Interpretation of the Language of the Separation Agreement
Appellant contends that the court erred in its interpretation of the language of
the separation agreement, and in disregarding the express language of the
separation agreement in favor of the intent of the parties. To support this
argument, Appellant relies upon various sections of Title 18 of the Guam Code
Annotated pertaining to contract interpretation. According to Appellant, the
clause in the separation agreement that requires alterations, amendments, and
modifications to be in writing should be interpreted to require also that a
rescission of the agreement be in writing. This express language, Appellant
argues, should have controlled the trial court's interpretation of the
agreement. We find this argument unpersuasive.
 In its
Decision and Order, the trial court specifically addressed the following
provision contained within the settlement agreement: "We agree that we may
not alter, amend, or modify our marital property agreement contained in this
instrument, except by an instrument in writing executed by both of us." The
trial court rejected Mrs. Camacho's argument that this language also requires
that a rescission be in writing. The court reasoned that "[n]owhere does it
state that a rescission, cancellation or termination of the Agreement has to be
in writing." We agree with the trial court's interpretation of this
18 of the Guam Code Annotated, Chapter 87, relates to the interpretation of
contracts. The following sections of Title 18 are particularly applicable in
Intention from language. The language of a contract is to govern its
interpretation, if the language is clear and explicit, and does not involve an
Interpretation of written contracts. When a contract is reduced to writing, the
intention of the parties is to be ascertained from the writing alone, if
possible; subject, however, to the other provisions of this Chapter.
Words in usual sense. The words of a contract are to be understood in their
ordinary and popular sense, rather than according to their strict legal meaning,
unless used by the parties in a technical sense, or unless a special meaning is
given to them by usage, in which case the latter must be followed.
Technical words. Technical words are to be interpreted as usually understood by
persons in the profession or business to which they relate, unless clearly used
in a different sense.
regard to the intent of the parties at the time of contracting, the intent that
must be ascertained from the language of the contract is whether the clause that
requires alterations, amendments, and modifications to be in writing includes
complete rescission, termination, or cancellation of the agreement. It is clear
from the four sections of Title 18, cited above, that in interpreting a clause
of a contract to determine the intent of the contracting parties, whenever
possible, the express language of the contract should control. The words of a
contract should be given an ordinary meaning, unless they are technical words,
such as legal terms of art.
words "alter," "amend," and "modify" are clearly
terms of art, routinely used by lawyers to denote specific legal concepts. When
contained within a written contract, as in the instant case, these terms should
not be interpreted to include additional concepts with distinct legal
definitions. Alteration or modification refers to a change in the terms of a
contract and does not describe a complete abandonment of the contract. See Honda
v. Reed, 156 Cal.App.2d 536, 319 P.2d 728 (Cal.Dist.Ct.App.1958). The California
Court of Appeals in Honda, construed a provision of the California Civil Code
which provides that alterations of written contracts must be in writing. The
Honda court described the distinction between abandonment of a contract by
mutual consent and alteration of the contract as follows:
is not an "alteration" or modification of a contract. Abandonment of a
contract terminates it and entirely abrogates so much of it as is unperformed.
Grant v. Aerodraulics Co., 91 Cal.App.2d at page 75, 204 P.2d at page 687, and
cases there cited.
may be mutually abandoned by the parties at any stage of its performance or
before any performance has been commenced, and by such abandonment each party is
released from any further performance, or, as in the instant action, each party
is released from any performance at all. Martin v. Butter, 93 Cal.App.2d 562,
566, 209 P.2d 636, and cases there cited; Evans v. Rancho Royale Hotel Co., 114
Cal.App.2d 503, 508, 250 P.2d 283.
P.2d at 731.
the court in Honda, the trial court, in this case, found the parties, subsequent
to executing their agreement, to have rescinded, or abandoned, the agreement.
The court refused Mrs. Camacho's invitation to include rescission within the
definition of "alter," "amend," or "modify" for
purposes of interpreting the language in the agreement that requires
alterations, amendments, and modification to be in writing. We find the trial
court's interpretation of this language to be correct. [FN5]
view of our approval of the trial court's interpretation of the language of the
agreement, we may quickly dispose of Appellant's argument that the trial court
disregarded the express language of the agreement in favor of the intent of the
parties. The trial court focused upon the intent of the parties, as evidenced by
their actions subsequent to execution of the agreement, only after it had
determined that the provision in the agreement requiring written alterations,
amendments, and modifications does not apply to a rescission. The trial court's
somewhat misleading statement that "[i]nstead of looking at the technical
language of the Agreement, we will look to the actual intent of the
parties" may have caused some confusion on this point. When the trial
court's Decision and Order is read as a whole, it is clear that this statement
is intended to apply to the question of whether the parties, subsequent to
executing the separation agreement, intended to rescind or cancel the agreement.
Appellant contends that the trial court erred in failing to receive evidence to
support its conclusion that the separation agreement had been rescinded by
implication. Appellant's contention is essentially that a trial, or at least an
evidentiary hearing, should have been conducted to determine whether the
separation agreement had been rescinded by implication. Such a question,
Appellant argues, is a question of fact and cannot be determined without
evidence of some kind.
review the factual determinations of the trial court with regard to rescission
by implication of a separation agreement under the substantial evidence
standard. Estate of Zlacket, 180 Cal.App.2d 553, 4 Cal.Rptr. 450, 453
(Cal.Dist.Ct.App.1960); Margolis v. Margolis, 115 Cal.App.2d 131, 251 P.2d 396,
400 (Cal.Dist.Ct.App.1952); Morgan v.. Morgan, 106 Cal.App.2d 189, 234 P.2d 782,
784 (Cal.Dist.Ct.App.1951); Plante v. Gray, 68 Cal.App.2d 582, 157 P.2d 421, 424
(Cal.Dist.Ct.App.1945). Under this standard, factual findings of the trial court
are upheld "unless there is an entire lack of substantial evidence in
support thereof." Plante, 157 P.2d at 424. For example, the court in Estate
of Zlacket, in upholding the validity of a separation agreement, held that
"[t]here was substantial evidence upon which the trial court based its
finding on the question involved and in that there was such substantial evidence
we are without power to substitute our judgment for that of the trial court's,
even if we were so inclined." Estate of Zlacket, 4 Cal.Rptr. at 453.
review of the record reveals that certain factual assertions by Mr. Camacho
remain undisputed. First, it is undisputed that Mr. and Mrs. Camacho reconciled
for nearly two years subsequent to executing the separation agreement. Second,
Appellant has not disputed that, subsequent to execution of the agreement,
community funds have been used to pay debts assigned under the agreement to Mrs.
Camacho. Finally, it is undisputed that, since the time the parties reconciled,
Mr. Camacho has himself obtained new loans in order to pay some of these debts,
and that repayment amounts on these loans are regularly deducted from Mr.
Camacho's paychecks. These undisputed assertions led the trial court to conclude
that the parties intended to rescind the separation agreement. We find these
undisputed factual assertions, contained in affidavits and raised at hearings
before the trial court, sufficient to satisfy the substantial evidence standard.
 For the
foregoing reasons, the Decision and Order of the Superior Court is AFFIRMED.
For all questions about Guam Divorces, custody or support, ask for attorney Ron Moroni. 1-866-472-1540.