Judgment no. 11/2018/HNGD-PT dated february 6, 2018 on dispute over division of common property upon divorce

PEOPLE’S COURT OF TIEN GIANG PROVINCE

JUDGMENT NO. 11/2018/HNGD-PT DATED FEBRUARY 6, 2018 ON DISPUTE OVER DIVISION OF COMMON PROPERTY UPON DIVORCE

On February 6, 2018, at the office of People’s Court of Tien Giang Province, the appellate trial was conducted to hear the case No. 80/2017/TLPT-HNGD dated December 11, 2017 on dispute over “Division of common property upon divorce”, upon the appeal against the First-Instance Judgment of Marriage and Family No. 103/2017/HNST dated September 6, 2017 of the People’s Court of City M. According to the Decision to Bring the Case to the Appellate Trial No. 474/2017/QD-PT dated December 20, 2017 between the parties:

- Petitioner:  Mrs. Nguyen Thi Thu P - born in 1968 (absent).

Address: Village T, Commune T, City M, Tien Giang Province.

Authorized legal representative of petitioner: Mr. Pham Ngoc D, born in 1972, address: Village B, Commune T, District C, Tien Giang Province, authorized representative of the petitioner (according to the Letter of Authorization dated June 19, 2017) (present).

- Respondent:  Mr. Nguyen Kim Q, born in 1962 (present).

Address: Village T, Commune T, City M, Tien Giang Province.

The protector of legitimate rights and interests of the respondent: Mr. Vo Tuan Vinh T, lawyer of Vo Tuan Vinh T Lawyer’s Office affiliated to Bar Association of Tien Giang Province (present).

- Appellant:  The respondent, Nguyen Kim Q.

THE CASE

- Representation of the petitioner, Mrs. Nguyen Thi Thu P, in the First Instance Judgment: 

She and Mr. Nguyen Kim Q had cohabited since 1986 and they have a marriage certificate. In 2015, she filed for divorce and her divorce case was tried by the People’s Court of City M of Tien Giang Province in the Judgment No. 19/2015/HN-ST dated February 10, 2015. According to the Judgment, the Court only granted her divorce from Mr. Q and did not consider the child custody of Nguyen Duy T, Nguyen Cong T and the marital property of her and Mr. Q further as she did not made any claim about that.

Their marital property includes: the land plot No. 375, the map No. 02, area of 4,680m2; purpose of land use: perennial land + urban land; the land plot No. 247, the map No. 02, area of 310m2, purpose of land use: perennial land, granted land use right certificate by the People’s Committee of District C, Tien Giang Province to the household, represented by Mr. Nguyen Kim Q, recorded in the register of land use right certificate No. CH 02417 dated April 23, 2002. The property on land includes: buildings, crops on land. Assets in the house include: 01 set of carving table and chairs, 01 refrigerator, 01 television, 01 karaoke system, 01 plastic cabinet, 01 worship cabinet, 01 long table. 4 motorcycles: 01 Wave motorbike, 50cc, license plate 63K-7128; 01 Raider motorbike, 150cc, in the name of Nguyen Kim Q; 01 Dream motorbike, license plate 63F5-8864, in the name of Nguyen Kim Q; 01 Nuow motorbike, license plate 63H4-6867 in the name of Nguyen Kim Q. A savings deposit of VND 700,000,000, in the name of Nguyen Kim Q, made at Tien Giang branch of Agribank and District C branch, Ben Tre Province of Agribank. The savings deposit has been made from January 1, 2006 to December 31, 2014. After divorce, she used to discuss with Mr. Q about the division of marital property but they cannot reach an agreement.

Now, she claims her portion including a half of the house value of VND 150,000,000, a half of the assets in the house valued at VND 45,000,000, and a half of savings deposit valued at VND 350,000,000. Regarding motorcycles: she does not have any dispute. Regarding land plots, she will reach an agreement with Mr. Q by their own. Total value of property she claims is VND 545,500,000.

In the request for withdrawal of partial petition and partial petition request dated June 14, 2017, Mrs. P represents: She requests to withdraw partial petition request as for the following assets: buildings, assets in the house. She only claims her portion in the savings deposit valued at VND 350,000,000.

- Representation of the respondent Mr. Nguyen Kim Q: He and Mrs. P were granted divorce by the People’s Court of City M, Tien Giang Province in the Judgment No. 19/2015/HN-ST dated February 10, 2015. Their marital property includes: 01 Sanyo refrigerator, 01 plastic cabinet, 01 set of inox table and chairs, 04 plastic inox chairs. Upon Mrs. P’s claim on these assets, he agrees to divide them into halves. Upon Mrs. P's claim on the house and 01 worship cabinet, Mr. Q affirms that these assets are not their marital property but they were created by Mrs. Nguyen Thi Tr (his mother) before her death and she left them to him. Upon Mrs. P claim’s on the following assets: 01 set of carving table and chairs, 01 31-inch TV, 01 karaoke system, and a savings deposit of VND 700,000,000 made at the Tien Giang branch and Ben Tre branch of Agribank, he refuses to divide because they do not exist.

When his mother was alive, his siblings living abroad had transferred money to him to take care of their mother. In 2008, his mother died, he deposited VND 720,000,000 at the bank. On August 4, 2014, he withdrew VND 720,000,000 and Mrs. P knew about it. On August 30, 2014, Mrs. P left home. After Mrs. P left home, he used the sum of VND 720,000,000 to cover living expenses and cost of childcare of Nguyen Cong T. This sum of money was used up, so he cannot divide it as claimed by Mrs. P.

- The First Instance Marriage and Family Judgment No. 103/2017/HNST dated September 6, 2017 of People’s Court of City M applies Clause 1 Article 28, Article 35, Article 147, Clause 2 Article 244 of the Civil Procedure Code 2015 in Viet Nam; Clause 2 Article 59 of the Law on Marriage and Family 2014 in Viet Nam; Article 27 of Ordinance on Court Fees and Charges in Viet Nam of Standing Committee of the National Assembly No. 10/2009/PL-UBTVQH12 dated February 27, 2009.

Judges: Accept the lawsuit petition of the petitioner, Mrs. Nguyen Thi Thu P.

Compel Mr. Nguyen Kim Q to divide Mrs. Nguyen Thi Thu P VND 350,000,000 (Three hundred fifty million dong).

Since the judgment enforcer has an application to enforce the judgment until the execution of the sentence, all the money amounts must be paid every month, the judgment enforcement party shall also have to bear the interest of the remaining amount of money still subject to the judgment execution. Interest rates are stipulated in Clause 2, Article 468 of the 2015 Civil Code.

Suspend Mrs. Nguyen Thi Thu P’s petition request for division of the house and assets therein.

With reference to property division court fee: Mrs. Nguyen Thi Thu P has to pay VND 17,500,000, which is deducted from the advance paid by Mrs. P of VND 6,545,000 according to the receipt No. 31205 dated December 12, 2016 of Sub-Department of Civil Judgment Enforcement of City M, Tien Giang Province, besides, she also has to pay VND 10,955,000.

With regard to the legal proceedings cost of VND 800,000, Mrs. P has paid fully.

- In addition, the Court of First Instance also pronounces the right to appeal of litigants as per the law.

- On September 8, 2017, the respondent, Mr. Nguyen Kim Q filed an appeal, requesting the Court of Appeal not to accept the petition request of Mrs. Nguyen Thi Thu P.

At the appellate court hearing, the authorized representative of the petitioner still upholds the petition request for division of a half of savings deposit made at Tien Giang and Ben Tre branches of Agribank valued at VND 350,000,000.

The respondent provided 03 bank transfer slips (01 slip dated August 1, 2011), 02 remaining bank transfer slips do not state date, signature, or seal of any certifying body. Content of the first slip: “Transfer money to mother 500$ and to brother 500$ to take care of his children; content of the second slip “recipient: KIM Q NGUYEN, transferor: LAM KIM NGUYEN, full receipt of 200 CAD”; content of the third slip “transferor: NGUYEN THI HUE, recipient: NGUYEN KIM Q, 2000 CAD”.

* Opinion of the protector of legitimate rights and interests of the respondent:

At the appellate court hearing, the respondent provides new items of evidence relating to the litigants abroad, the Trial Panel is required to take relevant persons living abroad in the legal proceedings.

According to the bank statements, it is not logical that the withdrawal amount is greater than the deposit amount. Every time making withdrawal and deposit, Mr. Q used different account numbers, totaling VND billion 4 which is unfounded, so the evidence of the bank needs to be re-considered.

Request the Trial Panel to take the persons with relevant rights and obligations who are children of Mr. Q and Mrs. P in the legal proceedings because the sum of money in dispute between Mr. Q and Mrs. P was used to cover the living expenses and cost of childcare.

The Court of First Instance’s failure to consider the above matter can be regarded as a serious procedural error; the Court of Appeal is requested to quash the First Instance Judgment.

* Opinions of the representative of the People’s Procuracy of Tien Giang Province:

+ Regarding proceedings: Since the date of acceptance of the case, the Judge, the Trial Panel and procedural participants have complied with the Civil Procedure Code.

+ With reference to the case: During the marriage, the petitioner and the respondent have created common property, so the request for division of marital property is accordant with laws and regulations; at the appellate court hearing, the respondent provided 03 bank transfer slips, stating the transactions with Dong A Bank but the number of converted foreign currencies not corresponding to the sum of money as the common property of the petitioner and the respondent.

There is no justifiable grounds that the protector of legitimate rights and interests claimed that the Court of First Instance made serious procedural error as it failed to take the children of Mr. Q and Mrs. P in legal proceedings as persons with relevant rights and obligations because Nguyen Cong T used the sum of money withdrawn from the bank by Mr. Q and the dispute is about division of property after divorce, not about the use of common property.

At the appellate court hearing, the respondent cannot prove that the sum of money in dispute is private property of respondent, thus the Court of First Instance’s decision was well-grounded. Propose the Appellate Trial Panel not to accept the respondent's appeal and uphold the First Instance Judgment.

According to documents and evidence considered and adversarial process result at the court hearing, opinions of the procurator and law provisions.

JUDGEMENT OF THE COURT

 [1] The Court of First Instance considered the proper dispute nature and jurisdiction in accordance with Clause 1 Article 28 of the Civil Procedure Code and Article 59 of the Law on Marriage and Family 2014.

 [2] The petitioner, Mrs. Nguyen Thi Thu P, and the respondent, Mr. Nguyen Kim Q, registered marriage on May 9, 1986. On January 12, 2015, People’s Court of City M judged the divorce case and issued the Judgment No. 19/2015/HNST dated February 10, 2015, recognizing amicable divorce between Mrs. P and Mr. Q. The Court did not consider their common property as no claim about that was made. Now, Mrs. P requests the Court to divide her a half of the savings deposit which Mr. Q made at Tien Giang and Ben Tre branches of Agribank totaling VND 720,000,000. She affirms that this sum of money is their marital property. The two branches have bank statements of this sum of money: At Tien Giang branch, 23 transactions were made, the balance up to June 2, 2014 was VND 150,000,000, then Mr. Q fully withdrew it on August 4, 2014; at District C, Ben Tre Branch, 72 transactions were made, the balance up to August 4, 2014 was VND 570,000,000, then Mr. Q fully withdrew it in 3 times on August 4, 2014. Mr. Q confirms that he withdrew total of VND 720,000,000 from these two branches and he used them up to cover family and childcare expenses.

 [3] The respondent, Mr. Nguyen Kim Q, at first instance court hearing, did not confirm that the savings deposit is marital property and claimed that that sum of money was transferred by his siblings to take care of his mother when she was alive, but he cannot provide any evidence for that statement at first instance court hearing. At the appellate court hearing, the respondent provided 03 bank transfer slips (01 slip dated August 1, 2011), 02 remaining bank transfer slips do not state date, signature, or seal of any certifying body. Content of the first slip: “Transfer money to mother 500$ and to brother 500$ to take care of his children; content of the second slip “recipient: KIM Q NGUYEN, transferor: LAM KIM NGUYEN, full receipt of 200 CAD”; content of the third slip “transferor: NGUYEN THI HUE, recipient: NGUYEN KIM Q, 2000 CAD”. After evaluating the evidence, it shows that the date and total sum of money converted stated in these slips does not match with the sum in reality. A sum of money to take care of his mother should have been transferred before 2008 because Mr. Q’s mother died on April 16, 2008; however, a slip stated the “date of August 1, 2011”. So, Mr. Q’s statement and the said 3 slips are ungrounded to justify that that sum of money is his private property. In addition, Mr. Q also willingly withdrew all of money from the two branches on August 4, 2014 and then declared that he used them up.

 [5] The savings deposit made by Mr. Q at two branches from 2009 to 2014 are recorded in the bank statements, Mr. Q and Mrs. P had not divorced during that period, so it should be considered as marital property as prescribed in Article 33 of the Law on Marriage and Family: “Where there is no justifiable grounds to prove the property in dispute is a party’s private property, such property shall be regarded as common property”. As no spouse can prove that such sum of money is their private property, it shall be considered as marital property, so Mrs. P’s claim for division of marital property is well-grounded and as per the law.

 [6] Considering opinion of the respondent’s lawyer at the appellate court hearing that the Court of First Instance made serious procedural error as failing to take the children of Mr. Q and Mrs. P who are living abroad in the legal proceedings and the bank statements are not correct, the Court considers it unfounded. Because during the appeal process, the respondent was absent at the first court hearing without reason; during this time, the respondent should have provided evidence for his appeal and his lawyer should have supported him in providing proper evidence as per the law, and have legal value and serve as proof in the case, but the litigants and lawyer failed to do it; therefore, there are no justifiable grounds for accepting the request of the lawyer.

[7] At appellate court hearing, the respondent did not give any evidence for the appeal against the lawsuit petition of the petitioner to protect his rights and legitimate interests as for the sum of money in dispute, so the Trial Panel has no justifiable grounds to accept the appeal of the respondent, and the First Instance Judgment should be upheld.

[8] Opinion of Procurator is accordant with decision of the Trial Panel, so it should be accepted.

[9] With reference to court fee: As there is no justifiable grounds to accept the appeal of the respondent, the respondent has to pay the appellate civil court fee in accordance with laws and regulations on court fees and charges.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Clause 1 Article 308, Article 293 of the Civil Procedure Code; do not accept the appeal of Mr. Nguyen Kim Q.

Uphold the First-Instance Judgment of Marriage and Family No. 103/2017/HNST dated September 6, 2017 of the People’s Court of City M.

Hereby judges: 

- Accept the lawsuit petition of the petitioner, Mrs. Nguyen Thi Thu P.

- Compel Mr. Nguyen Kim Q to divide Mrs. Nguyen Thi Thu P VND 350,000,000 (Three hundred fifty million dong).

Since the judgment enforcer has an application to enforce the judgment until the execution of the sentence, all the money amounts must be paid every month, the judgment enforcement party shall also have to bear the interest of the remaining amount of money still subject to the judgment execution. Interest rates are stipulated in Clause 2, Article 468 of the 2015 Civil Code in Viet Nam.

- Suspend Mrs. Nguyen Thi Thu P’s petition request for division of the house and assets therein.

- With reference to property division court fee: Mrs. Nguyen Thi Thu P has to pay VND 17,500,000, which is deducted from the advance paid by Mrs. P of VND 6,545,000 according to the receipt No. 31205 dated December 12, 2016 of Sub-Department of Civil Judgment Enforcement of City M, Tien Giang Province, besides, she also has to pay VND 10,955,000.

- With regard to the legal proceedings cost of VND 800,000, Mrs. P has paid fully.

- Regarding appellate civil court fee:

Mr. Nguyen Kim Q has to pay VND 300,000 of appellate court fee, which is deducted from the paid advance according to the receipt No. 32374 dated September 13, 2017 of Sub-Department of Civil Judgment Enforcement of City M, and he has made full payment of appellate court fee.

- Other decisions of the First Instance Judgment which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

- In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments. - The Appellate Judgment shall take legal effect from the date of pronouncement.