19 States ex. rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7 (let Cir. 2015). To determine futility, "a
20 1court must analyze the proposed amendment [or supplement] as if it were before the court on a
21 motion to dismiss." Lucan, 2018 Guam 27 '][ 13 (citations omitted). "[T]he court must accept as true
22 i all well-pleaded factual allegations, and view them in the light most favorable to the pleading party,"
23 5First Hawaiian Bank v. Manley, 2007 Guam 2 'II 9.
i. Brett's proposed supplements which dispute Donna's residency would not be futile.
Brett requests leave from the Court in order to supplement his Reply with recently discovered
26 facts that concern Donna's residence on Guam. Mot. Leave. His Motion for Leave arises from
Guam Supreme Court affirms that federal interpretation of FRCP 15 is persuasive when interpreting Guam Rules of Civil Procedure ("GRCP") 15.M. Elec. Corp. v. Phil-Gets (Guam) Int'l Trading Corp.,2016Guam35<1140. M Electric Corp.used the 'abuse of discretion' standard in its ruling on the motion for leave. 2016 Guam 35 '}[42.
DM0597-18 Page 3 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave) 1 Donna's Complaint for divorce which she filed on Guam on October 22, 2019. Guam law declares
2 divorces that are filed on Guam may be granted when it complies with the following provision: § 8318. Residence of Parties. (a) A divorce or dissolution of marriage may be granted if one (1) of the parties has been a resident of Guam for at least ninety (90) days immediately preceding the filing of a complaint for divorce, or dissolution of marriage. For purposes of this Section, a person shall be deemed a resident ... if one (l) of the parties is physically present in Guam for at least ninety (90) days immediately preceding the tiling of a complaint for divorce or dissolution of marriage. Physical presence by one of the parties in Guam for a period of ninety (90) days prior to filing of the action for divorce or dissolution of marriage Shall give rise to a conclusive presumption of compliance with this Section. `
8 19 Guam Code Ann. ("GCA") § 8318 (2005).3 Here, the Complaint alleges Donna "is and will be a i I 9 ! resident of the Territory of Guam for more than ninety (90) days last past prior to the filing of the
10 Complaint or entry of divorce herein." Con pl. at '][ 3. Donna submits a government authenticated
11 Q memorandum verifying her Guam residence and a signed lease agreement as proof of her assertion.
12 Ex. A, Mayor's Verification (Nov. 26, 2019), Ex. B, Lease Agreement (Nov. 7, 2019). Donna avers
she "is a resident of Guam since October 2019" and intends to continue her residence on a
14 permanent and indefinite basis.4 Opp'n Leave at 1, Opp'n Dismiss at 2.
The Court disagrees. Despite her claims, Brett's proposed supplement would not futile as it
16 attacks a fundamental and dispositive issue of divorce: residency. "Residency must be pled and
17 proved in all divorces or other actions for dissolutions of marriage." 19 GCA § 83l9(a). There is no
18 legal presumption that grants Guam courts automatic jurisdiction over all divorces tiled in its
19 dominion. Id. Instead, all actions for divorce or dissolution of marriage require courts to make
20 findings as to any party's legal residence, and this must be provable upon fact..LL
Brett's recent discoveries, in addition to the Court's findings, casts doubt on whether Donna
is a bona fide resident of Guam for the purpose of .bringing domestic disputes. In order to support his
23 allegation, Brett seeks to supplement his Reply with the investigative findings of David J. Sablan.
24 Sablan is a retired Guam Police Department detective who attempted to serve a complaint and
summons upon Donna at the address listed as her residence. Mot. Leave at 1, Sablan Decl. at '][*][ 3-4
The following is inapplicable and omitted for brevity: "if one (1) of the parties has been assigned with the U.S. Military to a unit on Guam or a ship home-ported in Guam for at least ninety (90) days immediately preceding the 28 filing of a complaint for divorce or dissolution of marriage or." 19 GCA § 8318. "I intend to be a resident of Guam permanently, as I have begun establishing our day to day necessities, which is also in preparation for the children." Donna Decl. at <]1 ll (Dec. 27).
DMOS97-18 Page 4 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave) 1 (Feb. 3, 2020). In his sworn declaration, Sablan testified his investigation of Donna's residence on
December 29, 2019 and January 9, 2020 revealed her purported landlord, Mark Williams, neither
3 knows Donna personally or as a tenant. Sablan Decl. at 'l['][ 5-8. Donna claims residence by virtue of
4 her lease agreement which was executed and signed by Williams, the same individual Sablan spoke
5 i I to and knows personally. Ld at *ll 6-8. See Ex. B. Despite the conflicting evidence, when viewed in I i ! 6 the light most favorable to Brett, Sablan's findings directly contradict Donna's assertions of
7 residence.5 This, in tum, goes against a finding that Donna is a resident of Guam as it illustrates that
8 her factual allegations are not sufficiently pled and proven as required by Section 8319.
Even if the Court were to find Brett's allegations insufficiently pled and proven, the Court ! I
10 I ! would still find it has no jurisdiction to grant Donna a divorce because she is not a resident of Guam.
11 Donna asserts to have begun establishing residence on Guam since October 2019, which corresponds
12 to her Mvad to Guam on October 15, 2019. Donna Decl. at '1[ 3 (Feb. 24, 2020). Donna then files her
13 Complaint for Divorce with the Superior Court of Guam on October 22, 2019, approximately one
14 week after her arrival. Comal. at 1. Thus, a simple review of the record demonstrates Donna has
15 patently failed to satisfy the ninety-day residency requirement needed divorces on Guam.6 Not only
16 does this finding support Brett's Motion for Leave, it strongly supports his initial Motion to Dismiss.
17 Brett's proposed supplement suggests Donna has not sufficiently pled and proven her claim of
18 residency, thus including Brett's findings would further develop the record. Here, the Court finds
19 Brett's Motion for Leave is not futile as there are adequate grounds to challenge Donna's resident
20 status for the purpose of divorce. As doubt surrounds the integral issue of Donna's residence,
21 Guam's jurisdictional authority over certain claims may be duly questioned as residence is a
22 threshold matter to obtaining proper a judgment of divorce. Thus, the Court finds Brett's Motion for
23 Leave is not futile and should be granted.
ii. Donna is not a Guam resident under the statute's plain meaning and legislative intent.
Donna argues she satisfies Guam's residency requirements for divorce as she had begun
26 residing on Guam since October 15, 2019 and planned to live there indefinitely. Opp'n Dismiss at 2,
See First Hawaiian Bank, 2007 Guam 2 '][9 (stating in motions for leave, well-pleaded factual allegations are viewed in the light most favorable to the pleading party), , SeeCon pl. at
DM0597-18 Page 5 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave) 1 Opp'n Leave at 2. The Court disagrees. Guam's divorce law requires residence for a minimum of
2 ninety-days; this period must immediately precede the filing of the divorce complaint. 19 GCA §
3 8318. In addition to this, physical presence in Guam for ninety-days immediately prior to tiling the
4 complaint creates a conclusive presumption of residency. 19 GCA § 8319. Here, Donna's Complaint
5 was filed on October 22, 2019. Ninety continuous days preceding this date would be July 24, 2019.
6 Relying on Donna's submitted facts, October 15, 2019- her averred date of residence- is a fairly
7 inaccurate estimation of ninety-days. As previously argued, even without Brett's proposed
8 supplements, it appears Donna alone demonstrates that she does not satisfy Guam's residence statute
9 for divorce. Under Section 8319, courts are required to make factual findings of residency for all
10 matters of divorce in order to establish jurisdiction. Here, the Court finds Donna has failed to
11 adequately plead and prove her compliance with Guam's divorce statute, thus, Donna is not a
12 resident of Guam.
13- A review of Donna's pleadings suggest she has fundamentally misapplied and misinterpreted
14 a comma in Section 8318 which deals with residency for divorce.7 For this reason, while the Court
15 believes a plain reading of the statute affirms the ninety-day time period precedes only the filing of
16 the divorce complaint, statutory construction of Sections 8318 and 8319 will be addressed.
17 Common law rules of statutory construction govern the interpretation of Guam's code. 1
18 GCA § 700. People v. Quichocho affirms "statutory construction is well-settled. If a statute is
19 unambiguous, then judicial inquiry is complete." 1997 Guam 13 '][ 5 (citing Rubin v. United States,
20 449 U.S. 424, 430 (1981). Ambiguity is determined by examining a statute's plain language and
21 structure as a whole, this includes the statute's object and policy. Guam Greyhound, Inc. v. Brizill,
22 2008 Guam 13
23 1455, 1459 (9th Cir. 1995).
24 Asa cardinal rule, a court must first tum to the language of the statute itself to decipher its
25 meaning. Sumitomo Const.. Co. Ltd. v. Gov 't of Guam, 2001 Guam 23 'll 17. If the language is plain
26 and clear, the statute is deemed unambiguous, thus affinning its plain meaning. at 17. Jones v.
27 MIngling, 191 F.Supp. 559
28 7 Although the comnla's placement is unorthodox, a review of the legislative records reveal it is likely a remnant of numerous legislative amendments.
DM0597-18 Page 6 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave) 1 legislative history to ascertain its intent. People v. Xo Is John, 2016 Guam 41
2 omitted)-See People v. Angoco, 1998 Guam 10 'll 6 (stating extrinsic materials are not necessary for
unambiguous statutes). Common law affirms legislative intent controls the analysis of the statute,
4 thus, any interpretation of the code must correspond. Guam Bowling Ctr. Inc. v. MIngling, 188
5 §F.Supp. 104, 105 (D. Guam 1960).
Donna interprets Section 8318 to include two separate time periods that would satisfy
7 I Guam's ninety-day residency requirement: (1) the ninety-day time period that precede the fling for
8 ! divorce and (2) the ninety-day time period that precede the entry of divorce. See Opp'nDisn1iss at 2-
9 . 3.8 The Court disagrees. Instead, it finds a plain reading of the statute indicates "ninety (90) days
10 immediately preceding the tiling of a complaint for divorce, or dissolution of marriage" are the same
11 i date. In other words, "filing of a complaint for divorce" and "dissolution of marriage" are not
separate dates because they are separated by a comma. See 19 GCA § 8318. See also § 8319. This i
13 interpretation corroborates with the legislative history and intent of I Liheslaturan Gu&han.9
While the Court believes a plain reading of the statute affirms the ninety-day time period
15 precedes only the tiling of the divorce complaint, Donna's emphasis on "at least ninety (90) days
immediately preceding the filing of a complaint for divorce, or dissolution" leads this Court to I ! 17 i believe ambiguity lies in the placement of the comma. See Opp'n Dismiss 2-3. Therefore, the Court !
18 turns to legislative history to ascertain the intent of the statute. A comparison of the current statute to
19 I! its previous amendments reveals the legislature's intent to curb the influx of non-residents from
20 filing divorce actions on Guam. See P.L. 27-129:l, Committee Report at 1-3 (Nov. 18, 2004). The
21 legislature was concerned that Guam would gain unfavorable reputations, such as "divorce haven" or II 22 ! i courts of incompetent jurisdiction. at 2-3. Hence, the amendments sought to restrict access in
23 order to preserve integrity, thus balancing Guam's economic interest with individual rights. LL
I Liheslaturan Go¢'ihan's intent is evidenced by the various amendments made to Sections
25 8318 and 8319. Numerous repeals and revisions of these sections exhibited a continuing trend to
26 restrict access to Guam courts for non-residents that have never stepped foot on Guam. Initially in
"In this case, [Donna] would be residing in Guam for at least ninety days on January 15, 20l9[sic]. Because the next 28 E hearing is scheduled for January 16, 2019[sic], and such dissolution of marriage would not be Ordered prior to such date, : [Donna] satisfies the residency requirement and the Court has jurisdiction of the matter." Opp'n Dismiss at 2-3 . l 9SeePublic Laws ("P-L~") P.L. 13-165:3, p.L. 17-81:26, P.L. 19-34:28, P.L. 27-129:1, and p.L. 28-093:2.
DM0597-18 Page 7 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave) i 1 1976, divorce only required the plaintiff's residence on Guam for ninety-days prior to "the
2 commencement of the action." P.L. 13-165:3 (1976). Then in 1984, Guam relaxed its residency
requirements for divorce and allowed a multitude of methods to establish residency for divorce on
4 Guam. See P.L. 17-81:26-27 (1984). This public law also first introduced the conclusive
5 presumption of residency which was formed through physical presence in Guam for ninety-days
6 before "the commencement of the action or next preceding the entry of the final decree of divorce." i
7 i I This public law was the first revision using the divorce entry date as a benchmark for residency.
8 LL Then in 1988, the sections faced stricter residency requirements for the first time, the ninety-day
9 time period was now mandated for residency. See P.L. 19-34:28 (1988). The entry of divorce date
was removed from Section 128, however, it still remained in all other sections. Intentional or not, a
11 reading of the entire statute appeared to create conflicting provisions for establishing residency. See
12 ! P.L. 19-34:28. Then in 2004, the statutes' Committee Report contained the following passage: SYNOPSIS OF BILL. [The current public law P.L. 27-129:1] would amend [the previous public law P.L. 19-34:28] by eliminating the provisions of current law, which allow non-residents to file for divorce in the Courts of Guam. Physical presence by one of the parties in Guam for a period of ninety days prior to filing of the action for divorce or dissolution of the marriage shall be required with its passage. /
17 P.L. 27-129:l (2004). This is the first direct statement regarding I Liheslaturan Guzman 's intent in
amending Guam's divorce statutes. The Committee Report stated the purpose of the amendment was
19 to prevent non-residents from obtaining jurisdiction for domestic disputes in Guam courts. They i 20 a I I accomplished this by removing the provision that permitted non-residents to waive jurisdiction
21 which would then allow courts to grant divorces regardless of One's residency status. However,
Section 8319 (formerly § 128) was not included in this public law, therefore no amendments were
23 made to these remaining sections still using the divorce entry date. See P.L. 27-129:1. Yet, the E i 24 !
5 strongest evidence of I Liheslaturan Guc'ihan's intent were the amendments made in 2005, the !
25 current statute. The 2005 Committee Report showcased the proposed amendment to Section 8319, !I 26 I I I which was the last provision still using the divorce entry end. Section 129 was amended to Section
27 8319 and redacted as follows: § 8319. Residence, @ presumption of jurisdiction.... Physical presence in Guam for ninety (90) days next preceding the commencement of the action Er--next preceding the entry of the final decree of divorce shall give rise to a conclusive
i DMOS97-18 Page 8 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave) presumption of residence in Guam as required by Section 128 of the Civil Code of Guam. /
3 i P.L. 28-093: 1-2 (2005).
Reading the statute and its revisions as a whole, Donna's argument clearly diverges from the
5 statute's legislative history and intent. It is apparent the legislature no longer supported the use of the
6 1divorce entry date as the end of the mandatory ninety-day time period. Not only was there a trend of
7 increasing restrictions, the use of the divorce entry date was gradually erased as more revisions were
8 made. Thus, Donna's assertions of residency fail as she has misinterpreted and misapplied the law.
9 Therefore, the Court finds Donna is not a resident of Guam in compliance with the divorce statute.
Absent a prohibition otherwise, a Motion for Leave to Supplement should be granted at the i i 11 court's discretion. Lucan, 2018 Guam 27 '11'][ 11-12 (citations omitted). Brett's Motion for Leave is E 12 i I hardly futile, it instead raises an integral and dispositive issue before the Court: whether Guam has
13 proper jurisdiction over the domestic dispute brought by Donna. "[A] court must analyze the
14 proposed amendment [or supplement] as if it were before the court on a motion to dismiss." Lucan,
15 12018 Guam 27 iI 13 (citations omitted). Not only has Brett disproven futility of his Motion, the
16 totality of the circumstances also support his Motion to Dismiss. A finding of jurisdiction is based on
17 facts, not legal presumptions. Because Donna has failed to adequately plead and prove her claims of
residence on Guam, the Court finds it does not have proper jurisdiction over the parties and therefore
19 1 cannot rule on her domestic matter.
CONCLUSION
By a preponderance of the evidence and based on the foregoing conclusions, the Court
22_ hereby GRANTS Defendant Brett Kenneth Cartwright's Motion for Leave and Motion to Dismiss.
Funmevz pnocezom/as Z e : w w u w r : ¢ / 0 9 / - w a 0 @ so ORDERED this / teaY ofMay 2020 I0.006201
The Honorable Anita A. Sukola Judge, Superior Court of Guam DMOS97-18 Page 9 of 9 D.H.B. Cartwright v. B.K. Cartwright D&O (Mot. Dismiss, Mot. Leave)