Aviano v. Aviano

Opinion

FlLED

suprRt0R COURT

GUAM

2022 wav -5 An n= 00

m THE SUPER1OR COURT oF GUAQLERK Oéf30URT BY:

JOYCELET ADRIANO, Superior Court Case No. WTYZIZTZIJ'

plaintiff

DECISION & ORDER

vs.

JESSE FERNANDEZ ADRIANO, Defendant.

This matter came before the Honorable Judge Elyze M. Iriarte on September 29, 2020, upon Plaintiff Joycelet Adriano's request to the Court for an Order allowing Adriano to serve process on Defendant Jesse Fernandez Adriano through publication and mailing. After reviewing the moving papers and the relevant law, Plaintiff's Motion and Order for SeMce by Publication is DENIED. Plaintiff is directed to effectuate servllce under the Hague Convention.

1. FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff filed a complaint for divorce with this Court on September 24, 2020, and on

September 29, 2020, moved to serve Defendant by mailing and publication. Plaintiff alleges that Defendant has been deported from Guam and now resides in the Philippines at House 288, Barangay Malimpuec Lingayen, Sison Pangasinan, Republic of the Philippines 2401. Con pl. 1]6

(Sept. 24, 2020).

11. LAW AND DISCUSSION

Plaintiff seeks to accomplish service under Guam law and rules. First, section 14106 of Title 7 of the Guam Code Annotated provides, "[w]here the person on whom seMce is to be made has ... departed from Guam, and cannot, after due diligence, be found on Guam . .. and

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DM0324-20 DECISION AND ORDER Page 2

the fact appears by affidavit to the satisfaction of the court... such court or judge may make an order that the service be made by publication of the summons and by mailing the complaint and summons." 7 GCA § l4l06(a). Second, the Guam Rules of Civil Procedure similarly provide, "[w]henever a statute or order of court thereunder provides for service of summons .... upon a party not an inhabitant aL found within Guam, service shall be made by publication in 31 newspaper of general circulation for the prescribed time and by mailing such summons, notice or order to the last known residence." GRCP4(o).

However, the Guam Rules of Civil Procedure also recognize for individuals residing in a l foreign country, seMce may be accomplished by means authorized by the Hague Convention. GRCP 4(t). The Hague Convention governs the service of summons on persons in foreign countries that have signed the treaty. In such circumstances, state and federal seMce rules for i seMce in those countries are then preempted: "By virtue of the Supremacy Clause, U.S. Const., Art. VI, the Convention pre-empts inconsistent methods of seMce prescribed by state law in all cases to which it applies." See WnlkswagenwerkAktiengesellschafi u Schlunlg 486 U.S. 694, 699 (1988). Therefore, according to federal law, when a foreign jurisdiction is a party to the Hague Convention, this Court must defer any local provision for service of process (such as Rule 4(o)) and instead follow international treaties.

That applies to this case as the Republic of the Philippines has very recently adopted the

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Hague Convention and issued specific guidelines on accomplishing service within its borders.

The Republic of the Philippine's participation in the Hague went into effect on October 1,

2020--just days after this case was filed. See Republic of the Philippines Supreme Court Administrative Order No. 251-2020 available at https://sc.judiciary.gov.ph/l3552/. The

Administrative Order provides specific guidance for seMce of process within its borders. This includes ensuring that the documents are in English or Filipino and that they are sent to the

DM0324-20 DECISION AND ORDER Page 3

Central Audiority, which then effectuates service upon the individual. See Adm. Order No. 251-2020 (Supreme Could of the Phi1ippines).1 Moreover, under the Hague Convention,Convention Done at the Hague Nov. 15. 1965:

T.I.A.S. No. 6638 (Feb. 10, 1969), there is no mention of service by publication. Further, Article 1 of the Hague Convention states, "[t]he present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad." Id. However, "[p]ublication does not require transmittal of documents abroad .. [therefore] service by publication does not implicate the Hague Convention, because it is not 'service abroad' within the meaning of Article l." Eta v Muranaka, 57 P.3d 413, 423 (Haw. 2002) (citing Iblkswagenwerk Aktiengesellschaft M Sehlunk, 486 U.S. at 700). Thus, the Hague Convention does not permit service by publication as an effective means of service.

III. CONCLUSION Based on the foregoing, Plaintiff's Motion and Order for Service By Publication is DENIED. Plaintiff is directed to accomplish service of process through the means authorized by the Hague Convention as adopted by the Republic of the Philippines.

SO ORDERED this 4th day of November 2020

HON ELYZE M. IRIARTE

Judge, Superior Court of Guam

Appearing Attorney: Gary W.F. Gumataotao, Esq., Law Offices of Gumataotao & Pole, P.C., for Plaintiff Joycelet Adriano

1 Article 1 of the Hague Convention provides that "[t]his convention shall not apply where the address of the person to be served with the document is not known." Convention Done at the Hague Nov. 15. 1965, Art. 1. Thus, if Plaintiff can make a showing that a valid address is not known for Defendant, then the requirements of The Hague Convention can potentially be bypassed, and service could be effectuated by publication and through the mail pursuant to Guam law. However, as it stands now, Plaintiff is aware of an address for Defendant in the Philippines and has made no showing that address is not valid. Therefore, the Hague Convention must be followed.