ry FILED SUPrRIOR COURT GUAM
1011 AUG -
4 IN THE SUPERIOR COURT OF GUAM 5
6 ) CASE NO. DM0510-11 LOU ANN PANABE CABRERA, 7 ) Plaintiff, ) 8 vs. ) DECISION AND ORDER ON DEFENDANT'S MOTION FOR ) 9 ENTRY OF DEFAULT JUDGMENT RANDY DIZON DUNGCA, ) 10 ) Defendant. ) II
12 INTRODUCTION 13
14 This matter came before the Honorable Alberto C. Lamorena IlIon March
15 12, 2012 on Defendant's Motion for Entry of Default Judgment. Attorney Catherine
16 B. Camacho represented Defendant, Randy Dungca. Attorney Renita M. Taimanao
17 represented Plaintiff, Lou Ann Cabrera. Following the hearing the Court took the matter under advisement. The Court now issues its Decision and Order. 18
19 FACTUAL HISTORY 20 Plaintiff and Defendant were in a relationship that ended in 2007. The 21 parties have two minor children together. Mter the parties separated, Defendant 22 became the sole care-taker for the children. On July 14, 2011, Plaintiff filed a
23 Complaint for Custody, requesting that she be granted primary physical custody
24 and joint legal custody of the minor children and that Defendant be ordered to pay
25 child support to Plaintiff. Defendant served upon Plaintiffs attorney his Answer and Counterclaim on September 6, 2011 in which Defendant requests that he be 26 awarded sole physical and legal custody over the minor children and that the court 27 order child support payments by Plaintiff and payment of any child support arrears. 28 Decision and Order Case No. DM0510-11
Plaintiff did not file an answer to the Counterclaim and Plaintiff failed to 2 otherwise defend against Defendant's counterclaims. Defendant filed a request for 3 entry of default and on January 18, 2012, the Clerk entered default against 4 Plaintiff. On January 26, 2012, Defendant filed the present Motion for Default 5 Judgment of Custody. 6 DISCUSSION 7 This matter presents two issues to be decided by this Court. First, this Court 8 must determine whether, given the circumstances of this case, it is appropriate to 9 grant Defendant's motion requesting entry of default judgment. And second, this 10 Court decides whether sanctions against Plaintiff are proper due to Plaintiffs II failure to appear at scheduled hearings. 12 A. The Motion for Entry of Default Judgment 13
14 Defendant moves for entry of default judgment based on the entry of default
IS by the clerk following Plaintiffs failure to file an answer or otherwise defend
16 against Defendant's Counterclaim. Plaintiff argues that there is good cause to set
17 aside the entry of default under Guam Rule of Civil Procedure 55(c) and that this Court should accordingly deny Defendant's motion. This Court agrees that there is 18 good cause in this custody action to set aside the entry of default, which would 19 preclude this Court from entering a default judgment.! 20 "[D]efault judgments are generally disfavored and deciding a case on its 21 merits is encouraged whenever possible." Adams v. Duenas, 1998 Guam 15 ~ 5 22 (citing Midsea Industrial, Inc. v. HK Engineering,Ltd., 1998 Guam 14, ~ 5). Default 23 judgments are especially disfavored in cases involving issues of custody. See, e.g., 24 Pinto v. Putnam County Support Collection Unit, 743 N.Y.S.2d 521, 523 (N.Y. App. 25
26 1 At the outset, this Court notes that Guam law does not allow custody matters to be 27 resolved by judgments. Under 19 GCA § 8404, a court may only make an "order" for 28 custody as the court sees proper. The distinction between a custody order and a judgment awarding custody is not trivial as an order of the court is far easier to modifY as compared to a final judgment. Decision and Order Case No. DM05I 0-11
Div. 2002) (noting that jurisdiction's "liberal policy with respect to vacating defaults 2 in matrimonial matters because the State's interest in the marital res and related 3 issues such as child support and custody favors dispositions on the merits"); State ex 4 rei. Kittrell u. Carr, 878 S.W.2d 859, 864 (Mo. Ct. App. 1994) (recognizing that 5 Missouri's rule allowing for entry of default judgment "would never be an 6 appropriate vehicle for determinations of child custody or child support due to the 7 necessity of determining the best interests of the child."); c.f. In re Marriage of 8 Wheeler, 743 S.W.2d 605, 606 (Mo. Ct. App. 1988) ("Strict rules pertaining to default 9 judgments are less rigorously applied in dissolution cases, especially where they 10 involve child custody"). 11 Under Rule 55(c) of the Guam Rules of Civil Procedure ("GRCP"), entry of 12 default may be set aside upon a showing of "good cause." GUAM R. CIV. P. 55(c). In 13 determining whether good cause exists for setting aside entry of default a court may 14 consider the same factors as it would consider in a motion to vacate default 15 judgment under GRCP 60(b). Adams at ~ 5. Those factors include (1) whether the 16 opposing party's culpable conduct led to the default, (2) whether the opposing party 17 has a meritorious defense, and (3) whether the party moving for default would be 18 prejudiced if judgment is set aside. Id. (citing Midsea Industrial, Inc. u. HK 19 Engineering,Ltd., 1998 Guam 14, ~ 5.). Defendant here argues that these factors 20 weigh against finding good cause to set aside the entry of default and favor entry of 21 default judgment against Plaintiff. 22 Defendant first argues that Plaintiffs culpable conduct led to the entry of 23 default. With respect to Plaintiffs culpability, Defendant asserts that Plaintiff had 24 ample time to file an answer to the Counterclaim and that Plaintiffs own 25 Declaration reveals that Plaintiff was present on Guam prior to the date that the 26 clerk entered default. Defendant therefore argues Plaintiffs neglect of the case 27 favors entry of default judgment. 28 Decision and Order Case No. DM051O-11
This Court is inclined to agree with Defendant's assessment of Plaintiffs 2 culpability. While Plaintiff claims that she was off-island when Defendant filed the 3 Counterclaim, (Pl.'s Decl in Supp. of Opp., Mar. 8, 2012), Plaintiff offers no 4 explanation as to why she could not communicate with her attorney during her 5 absence or why she could not address the matter when she arrived back on Guam in 6 October 2011. 2 Moreover, Plaintiffs inaction continued well after the entry of 7 default by the clerk. Plaintiff did nothing to address the entry of default until 8 March of 2012, when she filed her opposition to the present motion. These facts 9 suggest that Plaintiffs own neglect of this case led to the entry of default. 10 Next, Defendant argues that he will suffer prejudice if this Court were to set 11 aside judgment because Defendant will incur additional expenses. However, the 12 word prejudice is a legal term of art that is generally understood to mean "damage 13 or detriment to one's legal rights or claims." Black's Law Dictionary 1299 (9th ed. 14 2009). "[D]elay and legal costs are part and parcel of litigation and typically do not 15 constitute prejudice for the purposes of Rule 55(c)." Capital Yacht Club u. Vessel 16 A VIVA, 228 F.R.D. 389, 394 (D. D.C. 2005). As the Sixth Circuit notes, "it does not 17 make intuitive sense that simply claiming an increase in litigation cost should be 18 sufficient to establish prejudice. Setting aside default will always increase litigation 19 cost to the plaintiff because the plaintiff will actually have to litigate the case." 20 United States u. $22,050.00 U.S. Currency, 595 F.3d 318, 325 (6th Cir.
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ry FILED SUPrRIOR COURT GUAM
1011 AUG -
4 IN THE SUPERIOR COURT OF GUAM 5
6 ) CASE NO. DM0510-11 LOU ANN PANABE CABRERA, 7 ) Plaintiff, ) 8 vs. ) DECISION AND ORDER ON DEFENDANT'S MOTION FOR ) 9 ENTRY OF DEFAULT JUDGMENT RANDY DIZON DUNGCA, ) 10 ) Defendant. ) II
12 INTRODUCTION 13
14 This matter came before the Honorable Alberto C. Lamorena IlIon March
15 12, 2012 on Defendant's Motion for Entry of Default Judgment. Attorney Catherine
16 B. Camacho represented Defendant, Randy Dungca. Attorney Renita M. Taimanao
17 represented Plaintiff, Lou Ann Cabrera. Following the hearing the Court took the matter under advisement. The Court now issues its Decision and Order. 18
19 FACTUAL HISTORY 20 Plaintiff and Defendant were in a relationship that ended in 2007. The 21 parties have two minor children together. Mter the parties separated, Defendant 22 became the sole care-taker for the children. On July 14, 2011, Plaintiff filed a
23 Complaint for Custody, requesting that she be granted primary physical custody
24 and joint legal custody of the minor children and that Defendant be ordered to pay
25 child support to Plaintiff. Defendant served upon Plaintiffs attorney his Answer and Counterclaim on September 6, 2011 in which Defendant requests that he be 26 awarded sole physical and legal custody over the minor children and that the court 27 order child support payments by Plaintiff and payment of any child support arrears. 28 Decision and Order Case No. DM0510-11
Plaintiff did not file an answer to the Counterclaim and Plaintiff failed to 2 otherwise defend against Defendant's counterclaims. Defendant filed a request for 3 entry of default and on January 18, 2012, the Clerk entered default against 4 Plaintiff. On January 26, 2012, Defendant filed the present Motion for Default 5 Judgment of Custody. 6 DISCUSSION 7 This matter presents two issues to be decided by this Court. First, this Court 8 must determine whether, given the circumstances of this case, it is appropriate to 9 grant Defendant's motion requesting entry of default judgment. And second, this 10 Court decides whether sanctions against Plaintiff are proper due to Plaintiffs II failure to appear at scheduled hearings. 12 A. The Motion for Entry of Default Judgment 13
14 Defendant moves for entry of default judgment based on the entry of default
IS by the clerk following Plaintiffs failure to file an answer or otherwise defend
16 against Defendant's Counterclaim. Plaintiff argues that there is good cause to set
17 aside the entry of default under Guam Rule of Civil Procedure 55(c) and that this Court should accordingly deny Defendant's motion. This Court agrees that there is 18 good cause in this custody action to set aside the entry of default, which would 19 preclude this Court from entering a default judgment.! 20 "[D]efault judgments are generally disfavored and deciding a case on its 21 merits is encouraged whenever possible." Adams v. Duenas, 1998 Guam 15 ~ 5 22 (citing Midsea Industrial, Inc. v. HK Engineering,Ltd., 1998 Guam 14, ~ 5). Default 23 judgments are especially disfavored in cases involving issues of custody. See, e.g., 24 Pinto v. Putnam County Support Collection Unit, 743 N.Y.S.2d 521, 523 (N.Y. App. 25
26 1 At the outset, this Court notes that Guam law does not allow custody matters to be 27 resolved by judgments. Under 19 GCA § 8404, a court may only make an "order" for 28 custody as the court sees proper. The distinction between a custody order and a judgment awarding custody is not trivial as an order of the court is far easier to modifY as compared to a final judgment. Decision and Order Case No. DM05I 0-11
Div. 2002) (noting that jurisdiction's "liberal policy with respect to vacating defaults 2 in matrimonial matters because the State's interest in the marital res and related 3 issues such as child support and custody favors dispositions on the merits"); State ex 4 rei. Kittrell u. Carr, 878 S.W.2d 859, 864 (Mo. Ct. App. 1994) (recognizing that 5 Missouri's rule allowing for entry of default judgment "would never be an 6 appropriate vehicle for determinations of child custody or child support due to the 7 necessity of determining the best interests of the child."); c.f. In re Marriage of 8 Wheeler, 743 S.W.2d 605, 606 (Mo. Ct. App. 1988) ("Strict rules pertaining to default 9 judgments are less rigorously applied in dissolution cases, especially where they 10 involve child custody"). 11 Under Rule 55(c) of the Guam Rules of Civil Procedure ("GRCP"), entry of 12 default may be set aside upon a showing of "good cause." GUAM R. CIV. P. 55(c). In 13 determining whether good cause exists for setting aside entry of default a court may 14 consider the same factors as it would consider in a motion to vacate default 15 judgment under GRCP 60(b). Adams at ~ 5. Those factors include (1) whether the 16 opposing party's culpable conduct led to the default, (2) whether the opposing party 17 has a meritorious defense, and (3) whether the party moving for default would be 18 prejudiced if judgment is set aside. Id. (citing Midsea Industrial, Inc. u. HK 19 Engineering,Ltd., 1998 Guam 14, ~ 5.). Defendant here argues that these factors 20 weigh against finding good cause to set aside the entry of default and favor entry of 21 default judgment against Plaintiff. 22 Defendant first argues that Plaintiffs culpable conduct led to the entry of 23 default. With respect to Plaintiffs culpability, Defendant asserts that Plaintiff had 24 ample time to file an answer to the Counterclaim and that Plaintiffs own 25 Declaration reveals that Plaintiff was present on Guam prior to the date that the 26 clerk entered default. Defendant therefore argues Plaintiffs neglect of the case 27 favors entry of default judgment. 28 Decision and Order Case No. DM051O-11
This Court is inclined to agree with Defendant's assessment of Plaintiffs 2 culpability. While Plaintiff claims that she was off-island when Defendant filed the 3 Counterclaim, (Pl.'s Decl in Supp. of Opp., Mar. 8, 2012), Plaintiff offers no 4 explanation as to why she could not communicate with her attorney during her 5 absence or why she could not address the matter when she arrived back on Guam in 6 October 2011. 2 Moreover, Plaintiffs inaction continued well after the entry of 7 default by the clerk. Plaintiff did nothing to address the entry of default until 8 March of 2012, when she filed her opposition to the present motion. These facts 9 suggest that Plaintiffs own neglect of this case led to the entry of default. 10 Next, Defendant argues that he will suffer prejudice if this Court were to set 11 aside judgment because Defendant will incur additional expenses. However, the 12 word prejudice is a legal term of art that is generally understood to mean "damage 13 or detriment to one's legal rights or claims." Black's Law Dictionary 1299 (9th ed. 14 2009). "[D]elay and legal costs are part and parcel of litigation and typically do not 15 constitute prejudice for the purposes of Rule 55(c)." Capital Yacht Club u. Vessel 16 A VIVA, 228 F.R.D. 389, 394 (D. D.C. 2005). As the Sixth Circuit notes, "it does not 17 make intuitive sense that simply claiming an increase in litigation cost should be 18 sufficient to establish prejudice. Setting aside default will always increase litigation 19 cost to the plaintiff because the plaintiff will actually have to litigate the case." 20 United States u. $22,050.00 U.S. Currency, 595 F.3d 318, 325 (6th Cir. 2010) 21 (emphasis in original). There is no indication that setting aside the entry default 22 would result in excessive litigation costs here, and thus this Court finds no support 23 for Defendant's claim of prejudice. 24 Finally, Defendant argues that Plaintiff has no meritorious defense as 25 Plaintiff offers no evidence as to why the present custodial arrangement should be 26
2 Plaintiff admits that she returned to Guam in October 2011. And while she alleges 28 that she "needed to leave off-island again to attend to a family emergency III Saipan," Plaintiff does not provide the date on which she left Guam for Saipan. Decision and Order Case No. DM051 0-11
altered. However, Guam's statutes and public policy favoring joint custody offer 2 strong support for a defense to Defendant's claims for sole legal and physical 3 custody. See 19 GCA § 8484. In fact, this Court finds that Guam's strong public 4 policy favoring shared custody weigh heavily in favor of setting aside the entry of 5 default and allowing for a custody determination based on the best interests of the 6 children as opposed to basing a judgment on Plaintiffs procedural shortfalls. 7 B. Sanctions for Failing to Appear At a Custody Hearing 8
9 Defendant also requests sanctions for Plaintiffs failure to appear personally
10 at two scheduled custody hearings, one which even Plaintiffs attorney failed to
II attend. Defendant requests an order requiring Plaintiff to pay Defendant's attorney
12 fees for these two meetings. It does appear, however, that Plaintiff or her attorney
13 has appeared at all other scheduled hearings in this matter. While this Court is
14 sympathetic to Defendant's position, sanctions are not warranted at this time. This
IS Decision and Order will, however, serve as a warning to Plaintiff that a subsequent
16 failure by her or her attorney to attend another scheduled hearing may result in
17 sanctions.
18 CONCLUSION 19 Based on the foregoing, the Clerk's Entry of Default is set aside pursuant to 20 Rule 55(c) of the Guam Rules of Civil Procedure and Defendant's motion for entry of 21 default judgment is DENIED. A Scheduling Conference is set for September 10, 22 2012, at 2:00 p.m. 23
24 It is SO ORDERED this 9 th day of Augus ,2012. 25
27 HONORABLE ALBERT ",,--,-~u.ORENA III 28 Presiding Judge, Superior Court of Guam
ORIGINAL