Chulani v. Topandasani
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Opinion
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T r, : " 3 2
5 IN THE SUPERIOR COURT OF GUAM
6 HARESH DAYALDAS CHULANI, ) DOMESTIC CASE NO. DM0325-12 7 ) 8 Plaintiff, ) ) DECISION AND ORDER 9 v. ) ) 10 LAXMI LOUELIN TOP ANDASANI, ) II ) Defendant. ) 12
I3 INTRODUCTION 14 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 13th day 15 of August, 2012, for review of Plaintiffs Motion for Order for Publication of Summons filed on 16
17 May 8, 2012. Attorney Mark E. Kondas represents the Plaintiff, and the Defendant has not yet
18 been served, nor made an appearance. The Court now issues the following Decision and Order 19 on the matter. 20 DISCUSSION 21 The issue of personal jurisdiction arises in this case because the Plaintiff has requested 22
23 the issuance of an order of the Court allowing service upon the Defendant through publication
24 and mailing. 25 A) Personal Jurisdiction and Service 26 A court must have jurisdiction over a defendant's person, his or her property, or the res 27
28 which is the subject of the suit; further, the defendant must be amenable to and must receive Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
service of process. These are the concepts that embody personal jurisdiction and service. A
2 court may not enter a valid judgment in the absence of the proper exercise of personal
3 jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 716 (1877)("said judgment is in personam, and 4 appears to have been given without the appearance of the defendant in the action, or personal 5 service of the summons upon him, and while he was a non-resident of the State, and is, 6 therefore, void"); New York Life Insurance Co. v. Dunlevy, 241 U.S. 518, 522-23 (1916); 7
8 Hansberry v. Lee, 311 U.S. 32, 40 (1940)("It is a principle of general application in Anglo-
9 American jurisprudence that one is not bound by a judgment in personam in a litigation ... to 10 which he has not been made a party by service of process."). 11 Traditionally, personal jurisdiction was based on the defendant's actual presence within 12 the territorial power of a particular court. However, in more recent jurisprudence, the defendant 13
14 need only have sufficient contacts with the forum so that the maintenance of a suit against him
15 or her in a jurisdiction does not "offend traditional notions of fair play and substantial justice." 16 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The purpose of the minimum 17 contacts test "is to protect a defendant from the travail of defending in a distant forum, unless 18
19 the defendant's contacts with the forum make it just to force him to defend there." Phillips
20 Petroleum Company v. Shutts, 472 U.S. 797, 807-808 (1985). 21 In addition to establishing minimum contacts (or jurisdiction over the res of the suit), 22 before a court may exercise its power of personal jurisdiction over a defendant, the procedural 23 requirement of service of summons must be satisfied. "[S]ervice of summons is the procedure 24
25 by which a court having venue and jurisdiction of the subject matter of the suit asserts
26 jurisdiction over the person of the party served." Mississippi Publishing Corp. v. Murphree, 326 27
Page 2 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
U.S. 438, 444-45 (1946); see also Robertson v. Railroad Labor Bd., 268 U.S. 619, 622-23
2 (1925).
3 Prior to 1993, three prerequisites needed to be satisfied before a court could exercise 4 personal jurisdiction over a non-resident defendant; 1) a constitutionally sufficient relationship 5 must exist between the defendant and the forum; 2) a basis for the defendant's amenability to 6 service of summons must exist; and 3) the procedural requirement of service of summons must 7
8 be satisfied by notice to the defendant. Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd.,
9 484 U.S. 97, 103-104, and n.6 (1987). 10 In 1987, in Omni Capital International v. Rudolf Wolff & Company, Ltd., the Supreme 11 Court held that international service on a foreign defendant under the Commodities Exchange 12
Act, which was silent on service in a foreign country at the time, was ineffective under former 13
14 Rule 4(h), due to lack of amenability to service. The Court held:
15 [B]efore a court may exercise personal jurisdiction over a defendant, there must 16 be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the 17 defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant. Thus, under Rule 18 4(e), a federal court normally looks either to a federal statute or to the long-arm 19 statute of the State in which it sits to determine whether a defendant is amenable to service, a prerequisite to its exercise of personal jurisdiction. 20 Id. at 104-105. 21
22 "Amenability," therefore, means the existence of an explicit federal prOVISIOn for
23 international service or the existence of a state long-arm statute which authorizes such service. 24 See Id.; and Mwani v. bin Laden, 417 F.3d 1, 8-9 (D.C. Cir. 2005). 25 However, "amenability" to service, even for foreign residents, has been substantively 26 eliminated as an issue in cases under the Federal Rules of Civil Procedure, because in 1993, the 27
28 Advisory Committee on Civil Rules replaced the former Federal Rule Rule 4(i) with what is
Page 3 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
now Rule 4(f). Subdivision (f) of Rule 4 is a comprehensive provision for service of a summons
2 and complaint on individuals residing in a foreign country. The history of the rule, the Practice
3 Notes and the 1993 Advisory Committee Notes indicate that the new Rule 4(f) was drafted in 4 response to the United States Supreme Court's decision in Omni Capital International, such that 5 its enactment would nullify Omni' s amenability requirement that there be explicit authorization 6 by state or federal law for service outside the United States. According to the Note of the 7
8 Advisory Committee: "[g]iven the substantial increase in the number of international
9 transactions and events that are the subject of litigation in federal courts, it is appropriate to 10 infer a general legislative authority to effect service on defendants in a foreign country." 11 Advisory Committee on Civil Rules, Note to Subdivision (f) (1993). The texts of Rule 4(f) and 12 (k) facilitate the use of state long-arm statutes to assert jurisdiction over defendants who cannot I3
14 be served under state law, but who can be constitutionally subjected to the jurisdiction of a
15 particular court through minimum contacts or the physical location of subject property, by 16 legislatively authorizing service on those individuals.
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T r, : " 3 2
5 IN THE SUPERIOR COURT OF GUAM
6 HARESH DAYALDAS CHULANI, ) DOMESTIC CASE NO. DM0325-12 7 ) 8 Plaintiff, ) ) DECISION AND ORDER 9 v. ) ) 10 LAXMI LOUELIN TOP ANDASANI, ) II ) Defendant. ) 12
I3 INTRODUCTION 14 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 13th day 15 of August, 2012, for review of Plaintiffs Motion for Order for Publication of Summons filed on 16
17 May 8, 2012. Attorney Mark E. Kondas represents the Plaintiff, and the Defendant has not yet
18 been served, nor made an appearance. The Court now issues the following Decision and Order 19 on the matter. 20 DISCUSSION 21 The issue of personal jurisdiction arises in this case because the Plaintiff has requested 22
23 the issuance of an order of the Court allowing service upon the Defendant through publication
24 and mailing. 25 A) Personal Jurisdiction and Service 26 A court must have jurisdiction over a defendant's person, his or her property, or the res 27
28 which is the subject of the suit; further, the defendant must be amenable to and must receive Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
service of process. These are the concepts that embody personal jurisdiction and service. A
2 court may not enter a valid judgment in the absence of the proper exercise of personal
3 jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 716 (1877)("said judgment is in personam, and 4 appears to have been given without the appearance of the defendant in the action, or personal 5 service of the summons upon him, and while he was a non-resident of the State, and is, 6 therefore, void"); New York Life Insurance Co. v. Dunlevy, 241 U.S. 518, 522-23 (1916); 7
8 Hansberry v. Lee, 311 U.S. 32, 40 (1940)("It is a principle of general application in Anglo-
9 American jurisprudence that one is not bound by a judgment in personam in a litigation ... to 10 which he has not been made a party by service of process."). 11 Traditionally, personal jurisdiction was based on the defendant's actual presence within 12 the territorial power of a particular court. However, in more recent jurisprudence, the defendant 13
14 need only have sufficient contacts with the forum so that the maintenance of a suit against him
15 or her in a jurisdiction does not "offend traditional notions of fair play and substantial justice." 16 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The purpose of the minimum 17 contacts test "is to protect a defendant from the travail of defending in a distant forum, unless 18
19 the defendant's contacts with the forum make it just to force him to defend there." Phillips
20 Petroleum Company v. Shutts, 472 U.S. 797, 807-808 (1985). 21 In addition to establishing minimum contacts (or jurisdiction over the res of the suit), 22 before a court may exercise its power of personal jurisdiction over a defendant, the procedural 23 requirement of service of summons must be satisfied. "[S]ervice of summons is the procedure 24
25 by which a court having venue and jurisdiction of the subject matter of the suit asserts
26 jurisdiction over the person of the party served." Mississippi Publishing Corp. v. Murphree, 326 27
Page 2 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
U.S. 438, 444-45 (1946); see also Robertson v. Railroad Labor Bd., 268 U.S. 619, 622-23
2 (1925).
3 Prior to 1993, three prerequisites needed to be satisfied before a court could exercise 4 personal jurisdiction over a non-resident defendant; 1) a constitutionally sufficient relationship 5 must exist between the defendant and the forum; 2) a basis for the defendant's amenability to 6 service of summons must exist; and 3) the procedural requirement of service of summons must 7
8 be satisfied by notice to the defendant. Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd.,
9 484 U.S. 97, 103-104, and n.6 (1987). 10 In 1987, in Omni Capital International v. Rudolf Wolff & Company, Ltd., the Supreme 11 Court held that international service on a foreign defendant under the Commodities Exchange 12
Act, which was silent on service in a foreign country at the time, was ineffective under former 13
14 Rule 4(h), due to lack of amenability to service. The Court held:
15 [B]efore a court may exercise personal jurisdiction over a defendant, there must 16 be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the 17 defendant's amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant. Thus, under Rule 18 4(e), a federal court normally looks either to a federal statute or to the long-arm 19 statute of the State in which it sits to determine whether a defendant is amenable to service, a prerequisite to its exercise of personal jurisdiction. 20 Id. at 104-105. 21
22 "Amenability," therefore, means the existence of an explicit federal prOVISIOn for
23 international service or the existence of a state long-arm statute which authorizes such service. 24 See Id.; and Mwani v. bin Laden, 417 F.3d 1, 8-9 (D.C. Cir. 2005). 25 However, "amenability" to service, even for foreign residents, has been substantively 26 eliminated as an issue in cases under the Federal Rules of Civil Procedure, because in 1993, the 27
28 Advisory Committee on Civil Rules replaced the former Federal Rule Rule 4(i) with what is
Page 3 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
now Rule 4(f). Subdivision (f) of Rule 4 is a comprehensive provision for service of a summons
2 and complaint on individuals residing in a foreign country. The history of the rule, the Practice
3 Notes and the 1993 Advisory Committee Notes indicate that the new Rule 4(f) was drafted in 4 response to the United States Supreme Court's decision in Omni Capital International, such that 5 its enactment would nullify Omni' s amenability requirement that there be explicit authorization 6 by state or federal law for service outside the United States. According to the Note of the 7
8 Advisory Committee: "[g]iven the substantial increase in the number of international
9 transactions and events that are the subject of litigation in federal courts, it is appropriate to 10 infer a general legislative authority to effect service on defendants in a foreign country." 11 Advisory Committee on Civil Rules, Note to Subdivision (f) (1993). The texts of Rule 4(f) and 12 (k) facilitate the use of state long-arm statutes to assert jurisdiction over defendants who cannot I3
14 be served under state law, but who can be constitutionally subjected to the jurisdiction of a
15 particular court through minimum contacts or the physical location of subject property, by 16 legislatively authorizing service on those individuals. 17 Because the Guam Rules of Civil Procedure are directly derived from the 2003 Federal 18
19 Rules of Civil Procedure, federal cases interpreting the rules constitute highly persuasive
20 authority in Guam. People v. Diaz, 2007 Guam 3 , 14, n.4. Therefore, since the 1993 21 amendment to the Federal Rules of Procedure and Guam's adoption of these amended rules, 22 including Rule 4(f), in order to establish that the Superior Court of Guam has jurisdiction over a 23 particular defendant the Plaintiff must show through its pleadings or other evidence: 1) that 24
25 service of process has properly been effected; and 2) that there is a constitutionally valid basis
26 for the exercise of personal jurisdiction by the Court. 27
Page 4 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
A default judgment entered against a defendant who fails to appear cannot be enforced if
2 the court has never established personal jurisdiction over the defendant. Bixler v. Foster, 596
3 F.3d 751, 761-62 (lOth Cir. 2010). More significantly, a default judgment obtained against a 4 resident of a foreign nation who is not properly served under Rule 4(1) is void for lack of 5 personal jurisdiction and must be vacated. Shenouda v. Mehanna, 203 F.R.D. 166, 171-72 (D. 6 N.J. 2001). 7
8 A court has an affirmative duty to sua sponte examine its jurisdiction over the parties
9 when an entry of default judgment is sought against a party who has failed to plead, appear, or 10 otherwise defend against the action, to ensure that it does not enter a void judgment. System 11 Pipe & Supply, Inc. v. M/V Viktor Kumatovskiy, 242 F.3d 322, 324 (5th Cir. 2001); accord 12 Mwani v. bin Laden, 417 F.3d 1, 6 (D.C. Cir. 2005); Dennis Garberg & Assocs. v. Pack-Tech 13
14 Int'l Corp., 115 F.3d 767, 772 (lOth Cir.1997); see also Sinoying Logistics Pte Ltd. v. Yi DaXin
15 Trading Corp., 619 F.3d 207,213-14 (2d Cir. 2010); and In re Tuli, 172 F.3d 707,712 (9th Cir. 16 1999). A failure to serve process will lead to a dismissal of the action; however, the court 17 should not resolve the question and decline to enter a default judgment without first giving the 18
19 plaintiff an adequate opportunity to assert facts establishing the court's jurisdiction over the
20 defendant. In re Tuli, 172 F .3d 707, 713 (9th Cir. 1999). The plaintiff bears the initial burden of 21 establishing jurisdiction, but the court "ordinarily demands only a prima facie showing of 22 jurisdiction by the plaintiffT]." Mwani v. bin Laden, 417 F.3d 1,6-7 (D.C. Cir. 2005). 23 The Plaintiff s verified complaint and declaration submitted in support of an order 24
25 granting notice through pUblication and mailing are deficient in substantial respects regarding
26 this prima facie showing that personal service has been effected. Rule 4( e) of the Guam Rules 27 of Civil Procedure requires that if a person against whom an action is filed is a resident of Guam 28
Page 5 of27 Deeision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
or any other jurisdiction of the United States, they must be served either: (l) under the laws of
2 Guam; (2) "as prescribed by the law of the place where the person is served;" or (3) in person,
3 or at his residence by leaving it with a household member of suitable age, or by serving the 4 person's agent. GRCP Rule 4(e)(2012). However, if the Defendant is not a resident of Guam or 5 any jurisdiction of the United States, then personal service must be made under GRCP Rule 6 4(f), and may no longer be made "in any manner prescribed or authorized by the laws of 7
8 Guam," as permitted under GRCP Rule 4(e)(l), but instead must be made in conformity with
9 GRCP Rule 4(f). IO Further, if the Defendant is a resident of a foreign country, "whether a judicial judgment II [against the foreign defendant] is lawful depends on whether the sovereign has authority to 12
render it." J. McIntyre Machinery, Ltd. v. Nicastro, U.S. 131 S.Ct. 2780,2789 (2011). I3
14 In the case of the assertion of personal jurisdiction over a foreign defendant, "personal
15 jurisdiction requires a forum-by-forum, or sovereign-by-sovereign, analysis. The question is 16 whether a defendant has followed a course of conduct directed at the society or economy 17 existing within the jurisdiction of a given sovereign, so that the sovereign has the power to 18
19 subject the defendant to judgment concerning that conduct." Id.
20 A person in a foreign jurisdiction "may submit to a State's authority in a number of 21 ways." Id. at 2787. These ways include: 1) explicit consent; 2) physical presence within a State 22 for personal service of process under that State's laws; 3) citizenship, domicile or residence for 23 indi viduals, of place of business for corporations; 4) the purposeful availment of the laws of the 24
25 forum; and 5) minimum contacts. Id.
26 In order to analyze whether a non-resident person is subject to the State's authority (in 27 this case, Guam's authority) the Court requires a prima facie showing of some facts which 28
Page 60f27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
would support a finding of one of the five aforementioned ways of submitting to the State's
2 jurisdiction. In this case, the Plaintiffs Motion for Order for Publication of Summons is
3 unsupported, because the declaration and verified complaint in this case fail to set forth facts to 4 show that any of the five ways of exercising personal jurisdiction would be proper. Neither do 5 any of the factual allegations of the verified complaint or other documents allow the Court to 6 make a valid determination of jurisdiction. There are no allegations of the residency of the 7
8 Defendant, whether in a jurisdiction of the United States or a foreign country, which would
9 allow the Court to determine whether the Defendant is amenable to service under Rule 4(f), and 10 whether the Defendant may be served under Guam law or foreign law. Further, because no 11 residency of the Defendant is plead or proved, nor any activity of the Defendant in Guam, the 12
Court cannot determine the existence of the Court's statutory or long-arm jurisdiction over the 13
14 Defendant, either through minimum contacts, or the res of the marriage, after proper service, to
15 thus subject the Defendant to judgment in Guam. 16 1) No Residency of the Defendant is Pled or Proved in order to Allow the Court to 17 Determine the Proper Method of Service on the Defendant 18
19 The Plaintiffs verified complaint and declaration submitted in support of service by
20 publication and mailing are deficient for lack of allegations of the residency of the Defendant, 21 which would thereby allow the Court to determine whether a cause of action by which the Court 22 has jurisdiction over the Defendant exists, and what the proper form and manner of service 23 should be. In order for the Court to properly allow service by publication and mailing, it has to 24
25 appear from either the verified allegations of the complaint or the affidavit in support of service
26 by publication and mailing that a cause of action which may be brought in the Superior Court of 27 Guam exists against the Defendant. First, the declaration of the Plaintiff is silent as to whether 28
Page 70f27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
the Plaintiff has a proper cause of action against the Defendant in Guam. Next, the complaint
2 itself fails to factually allege that a cause of action exists against the Defendant over which this
3 Court has long-arm jurisdiction. Finally, there are no allegations which would lead the Court to 4 believe that the Defendant is subject to service of process through publication and mailing under 5 the laws of Guam. In fact, the factual declarations made by the Plaintiff lead the Court to the 6 opposite conclusion, i.e., that Defendant is a resident of a foreign country, and is therefore, not 7
8 amenable to service of process through publication and mailing under Guam law.
9 GRCP Rule 8(a)(1), entitled "General Rules of Pleading," requires every complaint to 10 set forth all jurisdictional bases for the claims contained therein, stating, "(a) Claims for Relief. 11 A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross 12
claim, or third party claim, shall contain (1) a short and plain statement of the grounds upon 13
14 which the court's jurisdiction depends." GRCP Rule 8(a)(1). CVR 10.1 of the Local Rules of
15 the Superior Court of Guam specifically requires that the complaint "shall state in a separate 16 paragraph entitled 'jurisdiction" the statutory or other basis for jurisdiction and the facts 17 supporting jurisdiction." CVR 10.1 (2012)(emphasis added). The complaint for divorce is 18
19 utterly devoid of any factual allegations as to the Superior Court of Guam's jurisdiction over the
20 Defendant, thus failing to meet the minimum requirement of GRCP Rule 8 and CVR 10.1. 21 The Verified Complaint for Divorce fails to meet the minimum jurisdictional 22 requirement of 19 GCA § 8319, by failing to plead and prove the residency of the Defendant. 23 "Residency must be pled and proved in all divorces or other actions for dissolutions of 24
25 marriage." 19 GCA § 8319(a) (2012) (emphasis added). More importantly, "[i]n actions for
26 dissolution of marriage, neither the domicile nor residence of the husband shall be deemed to be 27 the domicile or residence of the wife. For the purposes of such an action, each may have a 28
Page 8 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
separate domicile or residence depending upon proof of the fact and not upon legal
2 presumptions." 19 GCA § 8319(a) (emphasis added).
3 The Verified Complaint for Divorce is conspicuously silent in this regard. The 4 complaint merely claims that the Court has jurisdiction over this action because the Plaintiff is a 5 resident of Guam under 19 GCA § 8318; without reference to the Defendant's residence, or the 6 Court's jurisdiction over her. This allegation ignores the residency pleading requirement of the 7
8 very next statute, 19 GCA § 8319. Defendant's residency is not plead as required under 19
9 GCA § 8319(a) and GRCP Rule 8(a)(l), and the Court cannot presume her residency in Guam, IO or anywhere, under 19 GCA § 8319(a). Due to the declarations of the Plaintiff stating that the 11 marriage occurred in Jakarta, Indonesia, and that the Defendant's last known address is also in 12
Indonesia, the Court cannot even be assured that the Defendant is a resident of a jurisdiction of 13
14 the United States, and therefore subject to service under the laws of the United States and
15 Guam. Chulani v. Topandasani, DM0325-12, CompI. for Divorce (verified), p. 1, 'II IV (filed 16 May 8, 2012); and DecI. Summons by Publication, p. 1, '113 (filed May 8, 2012). 17 Plaintiff must not only plead residency, but must also prove the Defendant's residency, 18
19 wherever situated. Even in a consented divorce action, the Plaintiff must still plead and prove
20 the residency of the Defendant: "[a]llegations and proof of residence or other compliance with 21 the requirements of § 8318 of this Chapter shall be pled and proved in any divorce or 22 dissolution of marriage granted upon the consent of the Defendant." 19 GCA § 23 8319(a)( emphasis added). The closest the Plaintiff comes to referencing the Defendant's 24
25 residency is in the Declaration in Support of Publication of Summons, wherein he claims that
26 the "Defendant's last known mailing address is Kepu Selatan Gang Mantri IV #63 Paviliun 27
Page 9 of27 Decision and Order Domestic Case No. DM0325~12; Chulani v. Topandasani
Kemayoran, RT:08IRW:OI0 Jakarta Pusat, Indonesia 10620," ~~~, Domestic Case No.
2 DM0325-12, Declaration Summons by Publication, ~ 3 (filed May 8, 2012) (emphasis added).
3 More importantly, if the Defendant is a resident of Indonesia, as is indicated by 4 Plaintiff's declarations, then service authorized by the laws of Guam, including publication and 5 posting under 7 GCA § 14106 and GRCP Rule 4(0) are not applicable, as later discussed in this 6 opinion, and service would need to be effected under GRCP Rule 4(f). 7
8 Next, the Plaintiff's complaint also fails to plead consent. 19 GCA § 8319(b) states:
9 All consents to a divorce or dissolution of marriage must be acknowledged or verified before a notary public or other officer authorized to administer oaths 10 within the United States if signed in the United States, acknowledged or verified 11 before a consular officer of the United States or other United States official authorized to take oaths if signed outside the United States, or have a notarized 12 acknowledgement or verification by a foreign notary which is authenticated by a 13 United States consular officer.
14 19 GCA § 8319(b)(2012). 15 The Plaintiff's complaint does not contain any allegation that the Defendant has 16 consented to this divorce action. Failing any averment of consent, the Court's file is similarly 17 devoid of any verified or notarized acknowledgment of consent from the Defendant. 18
19 Finally, and perhaps most tellingly, 19 GCA § 8319(a) states that even in consent
20 divorce cases, "[t]he Superior Court of Guam is not presumed to have jurisdiction over any 21 action for divorce or dissolution of marriage which may be filed in the Superior Court of Guam 22 because the Defendant consents." 19 GCA § 8319(a) (emphasis added). There is no 23 presumption of jurisdiction even where a defendant properly consents, and consequently there is 24
25 no presumption of jurisdiction where the defendant is not present or does not consent. The
26 Court must independently find jurisdiction in each case. On this basis, it is apparent that in 27 order for the Court to properly exercise personal jurisdiction over the Defendant and the action 28
Page 10 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
for divorce, she must be a resident of Guam, see 19 GCA § 8319, or she must consent to the
2 action, see 19 GCA §§ 8318(b) and 8319(a) and (b), or the Court must find that the Defendant
3 has minimum contacts with the jurisdiction, see 7 GCA §§ 14109. 4 The Plaintiff's Complaint for Divorce is conspicuously silent in all regards concerning 5 the personal jurisdiction of the Superior Court of Guam over the Defendant. Even if the Court 6 disregards the Plaintiff's failure to plead and prove any residency of the Defendant, the Plaintiff 7
8 has omitted the filing of any declaration, affidavit, or other sworn statement containing evidence
9 sufficiently proving personal jurisdiction over the Defendant. 10 Plaintiff neither pleads nor proves that the Defendant was a resident of Guam or any 11 other place, nor that the Defendant has consented to the divorce. The requirement of either 12 consent or proof of residency of a defendant in a divorce case initiated in Guam is not merely a 13
14 formality, but rather, an extremely important safeguard, so that the Court may properly find
15 jurisdiction, and may apply the proper laws regarding service. 16 In the case of Rinehart v. Rinehart, 2000 Guam 14, the Supreme Court of Guam 17 expressed concerns regarding abuse of the Guam legal system by resident spouses against non- 18
19 resident spouses, which it found, creates an opportunity "in which on-island spouses could
20 tamper with the legal rights of off-island spouses." Id. at ~18. Validating the Supreme Court of 21 Guam's concern, and in violation of the statutory safeguards set by 19 GCA § 8319, the 22 Plaintiff has entirely failed to provide the Court with any admissible evidence regarding the 23 Defendant's residency or consent to this divorce action. The Plaintiff fails to even suggest that 24
25 the requirements of 19 GCA § 8319( a) have been met, in any document filed.
26 The Court finds that the Plaintiff has failed his burden to plead and prove the residency 27 of the Defendant, so that the Court may determine the applicable law, and has failed to 28
Page 11 of27 Decision and Order Domestic Case No. DM032S-12; Chulani v. Topandasani
demonstrate the personal jurisdiction of the Superior Court of Guam over the Defendant.
2 Based upon the proof of the facts provided to the Court, the Court declines to find that it has
3 jurisdiction to hear the action, as the Defendant is most likely not a resident of Guam, and has 4 not consented to this action. Unless minimum contacts exist between the Defendant and Guam, 5 by which the Court may exercise personal jurisdiction over her, as discussed later in this 6 opinion, the pleadings and declarations submitted do not support the exercise of jurisdiction. 7
8 See, e.g., Mariano v. Surla, 2010 Guam 2, at ~~ 23-29.
9 In fact, the allegations of the declaration filed which touch on the subject of the 10 Defendant's actual residence suggest that the Defendant is probably a resident of Indonesia, and 11 not a resident of a United States jurisdiction. The Verified Complaint for Divorce states that the 12 parties were married in Jakarta, Indonesia, in 2010, and the supporting declaration states that the I3
14 last known mailing address of the Defendant is in Jakarta Pusat, Indonesia. Chulani, Domestic
15 Case No. DM0325-12, Ver. CompI. for Divorce, p. 1, part IV (filed May 8, 2012); and DecI. 16 Summons by Publication, ~ 3 (filed May 8, 2012). It seems most likely that the Defendant is 17 not, nor has ever been, a resident of a United States Jurisdiction. 18
19 Rule 4(e)(1), allowing for service of process through publication under statute, is only
20 applicable where the defendant resides in a jurisdiction of the United States. Elisan 21 Entertainment, Inc. v. Suazo, 206 F.R.D. 335, 335-38 (D. Puerto Rico 2002). "[W]hile it is true 22 that the current Fed.R.Civ.P. 4(e)(1) permits the use of state law to perform extraterritorial 23 service, by its own terms, its usage is strictly limited to service upon individuals within 'any 24
25 judicial district of the United States.'" Id., at 336. Service of process on foreign residents "must
26 be made pursuant to Fed.R.Civ.P. 4(1)." Id. There is a special procedure for serving residents of 27 foreign nations under Rule 4(1): 28
Page 12 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
[W]hen a party seeks to serve process on an individual residing in a foreign country, the Court must follow this two (2) prong test: first it must ascertain 2 whether the foreign country in which the party to be served is residing has entered into any international agreement with the United States, such as the Hauge(sic) 3 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965, which is specifically 4 mentioned by Rule 4(f)(1). If there is no applicable internationally agreement 5 which might provide a reasonable means of service, then the party serving process must do so using one of the several methods provided by subsection (f)(2). 6 Id. 7
8 If the Defendant is not, or has never been a resident of Guam, and is, in fact, a resident
9 of Indonesia, as indicated by the allegations of the verified complaint and the declaration, then: 10 1) 7 GCA § 14106 is not applicable; and 2) service under GRCP Rule 4(f) would need to be 11 effected as a precursor to the exercise of personal jurisdiction over the Defendant, as no 12
evidence that a waiver has been obtained from the Defendant has been provided to the Court by 13
14 the Plaintiff. Id. 15 Indonesia is not a party to the Hague Convention on the Service Abroad of Judicial and 16 Extra Judicial Documents in Civil and Commercial Matters, and it is not apparent that it is a 17 party to any other treaties or international agreements regarding service with the United States. 18
19 GRCP Rule 4(f)(1) is not applicable in such an instance. Therefore, if the hinted allegations
20 that the Defendant is a resident of Indonesia are true, it appears that the Plaintiff will be required 21 to comply with other subsections of Rule 4(f), which require service under the laws of the 22 foreign country in which the Defendant resides, rather than U.S. laws. See id. at 338 (since 23 Dominican Republic is not signatory nation of Hague Convention and United States does not 24
25 have applicable international agreement with Dominican Republic, plaintiff was required to
26 provide service of process on defendant using method provided by Rule 4(f)(2), and service of 27 summons by publication as permitted under Rule 4( e)( 1) was denied as inapplicable and 28
Page 13 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
ineffective). There are no exceptions to these foreign service requirements, and the Court may
2 not apply its own local laws to override international law. See, e.g., Volkswagenwerk
3 Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (compliance with the service 4 requirements of the Hague Convention under Rule 4(f) is mandatory when serving a foreign 5 defendant in a signatory country); and Societe Nationale Industrielle Aerospatiale v. United 6 States District Court, 482 U.S. 522,534 n. 15, (1987). 7
8 Perhaps most importantly, if the Defendant IS a resident of Indonesia, Rule 4(1)
9 regarding proof of service, contains a special provision for proving foreign service, specifically 10 requiring that if process is served in a foreign country by any of the methods described in Rule 11 4(f)(2) or Rule 4(f)(3), the proof of service must include a receipt signed by the addressee or 12
other tangible evidence of delivery to the addressee showing compliance with the law of the 13
14 receiving country which is satisfactory to the court. GRCP Rule 4(1) (2012) ("Proof of service
15 in a place not within Guam or any other jurisdiction of the United States, its territories, 16 commonwealths, or possessions shall, .. .if effected under paragraph (2) or (3) thereof, include 17 a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to 18
19 the court."). For the obvious reason that a foreign Defendant \\rill usually not be present in the
20 forum jurisdiction, this requirement is intended to assure the Court that the process was properly 21 served in the foreign country. Only upon the provision of this proof of service may the Court be 22 assured that it may properly exercise personal jurisdiction over the foreign Defendant. 23 The Court currently has no proof of residency, and no proof of service under Indonesian 24
25 law ifthe Defendant is a resident ofIndonesia. Until the Plaintiff complies with Rule 8(a), CVR
26 10.1, and 19 GCA § 8319(a), and provides the Court with the Defendant's place of residence, 27 the Court will be unable to determine whether the Defendant is subject to 7 GCA § 14106, and 28
Page 14 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
service under the laws of Guam, or service under Rule 4(f) and the laws of a foreign
2 jurisdiction. The Court will further be unable to determine whether proper service is thereafter
3 effected under the correct and applicable laws, see Rule 4(f) and (1), and thereby determine if it 4 has acquired personal jurisdiction over the Defendant in order to enter a valid judgment. 5 The declaration and the verified complaint fail to establish the Defendant's residency 6 GRCP Rule 8(a) such that the Court may determine the appropriate method of service, whether 7
8 under Rule 4(e) and 7 GCA § 14106 (if applicable), or Rule 4(f), and thereby, through proper
9 service, establish the Court's jurisdiction over the Defendant. Because residency of the 10 Defendant has not been established, at this time, the Court must DENY the Order for 11 Publication of Summons requested by the Plaintiff. 12 2) Deficiency of Underlying Declaration in Support of Order for Service by Publication 13
14 Even if the Defendant is a resident of a United States jurisdiction, including Guam, and
15 therefore, may be subject to any service allowed under Guam law or U.S. law under GRCP Rule 16 4( e)(1), the version of GRCP Rule 4 which is currently in effect only allows for service through 17 publication and mailing as permitted by statute or court order. GRCP Rule 4(0)(2012).7 GCA 18
19 § 14106 is the controlling statute, and specifically allows for service by publication and mailing
20 instead of personal service under GRCP Rule 4(e)(1) or (2), only when an application is made 21 to the Court upon a verified affidavit (or declaration, see 6 GCA § 4308) swearing either that 22 the person "has departed from Guam ... or conceals himself to avoid the service of summons" 23 and that "a cause of action exists against the defendant." 7 GCA § 14106 (2012). It states in 24
25 relevant part:
26 (a) Where the person on whom service is to be made has departed from Guam, and cannot, after due diligence, be found in Guam, or conceals himself to avoid 27 the service of summons . .. and the fact appears by affidavit to the satisfaction of 28 the court, or a judge thereof, and it also appears by such affidavit, or by the
Page 15 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made ... such court or judge may make an 2 order that the service be made by the publication of the summons and by mailing the complaint and summons. (b) Service by mail shall be by any kind of U.S. 3 Postal Service delivery that provides for written proof of mailing, written proof of delivery and restricted delivery to the addressee only. 4
5 7 GCA § 141 06 (emphases added).
6 The Plaintiff makes no arguments about the applicability of this statute to this particular 7 case, but merely requests that this order for service by publication issue so that the Court may 8 "obtain jurisdiction." Chulani v. Topandasani, DM0325-12, Decl. Summons by Publication, p. 9
10 1,'4 (filed May 8, 2012). In light of the specific language of7 GCA § 14106 and GRCP Rule
11 4(e), the Court cannot yet find that this statute is applicable to this case based upon the lack of 12 factual allegations in the declaration. However, even if the Court were able to make such a 13 finding, service by publication and mailing under 7 GCA §141 06 is only available in lieu of 14 personal service under GRCP Rule 4(e) (it is not available in lieu of Rule 4(f)), and first 15
16 requires an affidavit or verified complaint swearing, or declaring under penalty of perjury, not
17 only that the Defendant cannot be found in Guam, but either: 1) both that the Defendant "has 18 departed from Guam" AND "cannot ... be found in Guam;" or 2) that the Defendant has 19 concealed himself/herself "to avoid the service of summons ...." 7 GCA § 14106. Both of 20 these options are carefully worded to indicate to the Court that the Defendant is attempting to 21
22 avoid service, not merely that a defendant is not present in Guam.
23 In fact, Rule 4(e) anticipates that parties who merely reside in other United States 24 jurisdictions may need to be served from time to time, and provides a method for such service, 25 stating: "service upon an individual . . . may be effected . . . in any other jurisdiction of the 26
27 United States, its territories, commonwealths, and possessions: (1) ... as prescribed by the law
28 of the place where the person is served; or (2) by delivering a copy of the summons and of the
Page 16 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
complaint to the individual personally . . . . " GRCP Rule 4(e). Service by publication and
2 mailing under 7 GCA§ 14106 is only available as an option oflast resort, when a defendant has
3 fled Guam or is hiding somewhere in Guam to avoid service. 4 Regarding the Defendant's "depart[ure]" from Guam, the Declaration of the Plaintiff 5 does not even contain a recitation of the language of the statute, and merely states that the 6 Plaintiff "believe[s] that the Defendant's whereabouts is(sic) unknown." Chulani, Decl. 7
8 Summons by Publication, ~ 2 (filed May 8, 2012). No factual allegations that the Defendant has
9 ever resided in Guam and thus, has ever "departed from Guam" are present. Nor are there any 10 allegations that the Defendant has ever been to Guam, or would ever have been subject to 11 service in Guam. The Court finds that the statements of the declaration, without any 12 accompanying information regarding the Defendant's previous presence in and flight from 13
14 Guam, or subjection to service in Guam, are inadequate to support the issuance of an order for
15 publication and mailing under 7 GCA § 14106. 16 Regarding the Defendant's "concealment" from service, Plaintiffs declaration is silent. 17 Service by publication and mailing is not to be lightly granted, nor lightly treated under 7 GCA 18
19 § 14106, as it is permitted only in the alternative that personal service pursuant to GRCP Rule
20 4(e) cannot be made because of the Defendant's actions. GRCP Rule 4(e)(1) and (2). 21 The Plaintiff s declaration fails to allege the minimum requirements for the issuance of 22 an order for service by publication and mailing. The declaration neither declares that the 23 Defendant has ever resided in Guam, nor that the Defendant has ever concealed herself to avoid 24
25 service under GRCP Rule 4( e). A declaration to the effect that a person is not present in Guam,
26 without more, does not satisfy the requirements of 7 GCA § 14106. Plaintiffs declaration 27
Page 17 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
further fails to allege that personal service pursuant to GRCP Rule 4(e)(1) or (2) or GRCP Rule
2 4(f) was attempted or was not possible in this case.
3 Accordingly, the declaration and the verified complaint fail to establish the facts 4 required under 7 GCA 14106 (even if applicable) and GRCP Rule 8(a). The Plaintiff's Motion 5 for Order for Publication of Summons is therefore DENIED on this basis as well. 6 3) Jurisdiction Over the "Res" of the Marriage Requires Service 7
8 Again, because the Plaintiff has failed to plead or prove the residency of the Defendant
9 in any United States jurisdiction or even any foreign jurisdiction, the Court is unsure whether IO the Defendant is a Guam resident or non-resident. The Court can only surmise, based upon the II absence of allegations regarding the Defendant's residency, the allegations of the place of the 12
marriage, and the allegations regarding the Defendant's "last known address" that the Defendant I3
14 is, most likely, not a resident of Guam, and is more likely a permanent resident of a foreign
15 country, i.e., Indonesia. 16 Each state may define the contours of its own exercise of personal jurisdiction over non- 17 resident defendants, particularly with regard to divorces. Under the holding of Williams v. 18
19 North Carolina, 317 U.S. 287 (1942) ("Williams I"): 1) each state may choose, within its own
20 borders, whether to exercise limited jurisdiction over the marriage relation and over non- 21 resident defendants; and 2) after legislating the exercise of jurisdiction, the state may exercise 22 this jurisdiction, so long as there is no "constitutional barrier" imposed by lack of service, i.e., 23 the form and nature of "service meet the requirements of due process." Id. at 298-99. 24
25 There was a second determination of the Williams case, in Williams v. North Carolina,
26 325 U.S. 226 (1945) ("Williams II"), in which the Supreme Court upheld Williams' conviction 27 for bigamous cohabitation in North Carolina, notwithstanding the fact that a Nevada court had 28
Page 18 of27 Decision and Order Domestic Case No. DM032S-12; Chulani v. Topandasani
granted him a divorce, because there was proof that the Nevada court had no jurisdiction to
2 enter the divorce decree originally, and that the issues in the Nevada court had not been
3 "litigated in a truly adversary proceeding." Id. at 229-30, and n.6. Williams I was next 4 succeeded in Estin v. Estin, 334 U.S. 541 (1948), again analyzing the extent of Nevada's 5 divorce jurisdiction, and upholding the divorce status, but dissolving all other aspects of the 6 divorce decree on the basis of lack of personal service. Id. at 549. "We can put to one side the 7
8 case where the wife was personally served or where she appears in the divorce proceedings. Cf.
9 Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269; Davis v. Davis, 305 U.S. 10 32,59 S.Ct. 3, 83 L.Ed. 26, 118 A.L.R. 1518; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087; 11 Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094. The only service on her in this case was by 12
publication and she made no appearance in the Nevada proceeding." Id. at 544. "The Nevada 13
14 decree that is said to wipe out respondent's claim for alimony under the New York judgment is
15 nothing less than an attempt by Nevada to restrain respondent from asserting her claim under 16 that judgment. That is an attempt to exercise an in personam jurisdiction over a person not 17 before the court. That may not be done." Id. at 548-49. Estin was itself succeeded in Burnham 18
19 v. Superior Court of California, County of Marin, 495 U.S. 604 (1990), wherein the Supreme
20 Court of Guam upheld a decree of divorce granted against the Petitioner in California, in 21 contravention of his first filed action for divorce in New Jersey, where the Petitioner was 22 properly served in person while he visited California, but "Petitioner did not, however, obtain 23 an issuance of summons against his wife and did not attempt to serve her with process." Id. at 24
25 607 and 616-18. All of these holdings emphasize the requirement of valid service of process in
26 order for a court to enter a valid decree of divorce. 27
Page 19 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
In any event, the two holdings of Williams I are not met in this case. First, Guam has
2 chosen its method for the exercise of jurisdiction over non-resident defendants, even in divorce
3 actions, through its adoption of California's long-arm statute. Second, as previously discussed 4 in this opinion, it is apparent that the Defendant is a non-resident (foreign) defendant who has 5 not been properly served, thus posing a constitutional due process barrier to the exercise of 6
7 personal jurisdiction. See Williams I, 217 U.S. at 299; and Burnham, 495 U.S. at 607.
8 In In re Marriage of Malak, 182 CaLApp.3d 1018 (Cal. App. 3d Dist. 1986), the 9 California Court of Appeals determined whether California could exercise personal jurisdiction 10 over the husband, who was a foreign non-resident defendant in a divorce action. The court 11 found that it was required to determine whether due process requirements would be met in an 12
13 assertion of jurisdiction. Id. at 1023. The court found that the amended petition for dissolution
14 of marriage, "summons, and a motion for orders pended lite were duly served on husband." Id. 15 at 1022. However, the court found that it was required to find minimum contacts to ensure that 16 "the imposition of jurisdiction should be both constitutionally justified and 'fair. '" Id. at 1024. 17 On this basis, the court quashed the service on the defendant for all purposes of the action, 18
19 except for the issue of child custody. Id.
20 Under the reasoning of this case, it appears that California courts refuse to exercise long- 21 arm jurisdiction over residents of foreign countries, for the purposes of dissolution of marriage, 22 unless minimum contacts are established. 7 GCA § 14109, Guam's long-arm statute, was 23 adopted directly from California's long-arm statute, codified as California Code of Civil 24
25 Procedure § 410.10. The Supreme Court of Guam has specifically adopted the minimum
26 contacts test regarding personal jurisdiction over non-resident defendants in Guam under 7 27 GCA § 14109, finding, "the Due Process Clause requires a defendant to have 'certain minimum 28
Page 20 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
contacts with [the forum] such that the maintenance of the suit does not offend traditional
2 notions of fair play and substantial justice.'" Mariano v. Surla, 2010 Guam 2 ~ 23 (quoting PCI
3 Commc'ns, Inc. v. GST Pacwest Telecom Haw., Inc., 1999 Guam 17 ~ 17)(internal citations 4 omitted))(emphasis added). Accordingly, Guam has chosen its method of exercising jurisdiction 5 over non-resident defendants, even in a divorce action, through its adoption of California's 6 long-arm statute, and it requires minimum contacts with Guam. 7
8 In Saysavanh v. Saysavanh, 145 P.3d 1166 (Utah App. 2006), Husband filed an
9 amended petition for divorce in Utah seeking dissolution of marriage from Wife, who lived in 10 Mexico. Id. at 1167. Approximately one week later, Husband filed a motion for alternative 11 service pursuant to Rule 4(d)(3)(B)(iii) ofthe Utah Rules of Civil Procedure. Id. Like the Guam 12 Rules of Civil Procedure, the Utah Rules of Civil Procedure were directly derived from the 13
14 Federal Rules of Civil Procedure. The trial court granted the motion for alternative service, and
15 the next month, the court clerk mailed an Amended Verified Petition for Divorce, a summons, a 16 Motion for Order to Show Cause, and an Order to Show Cause to Wife in Mexico, requesting a 17 return receipt. Id. at 1167-68. The receipt was later returned to the court clerk unsigned and 18
19 without any other indication that the documents had been delivered to Wife. Id. Wife did not
20 appear at the hearing to show cause. Id. Despite Wife's absence, the trial court granted 21 Husband's motion for order to show cause, and subsequently entered a default decree of 22 divorce. Id. Upon becoming aware of the default divorce decree, Wife immediately obtained 23 counsel in Utah and filed a motion to set aside the default decree of divorce pursuant to Rule 24
25 60(b) on the basis of lack of personal jurisdiction. Id. The trial court denied the motion to set
26 aside the default decree and held that Husband "made every effort possible to apprise [Wife] of 27
Page 21 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
the divorce proceedings, including strict compliance with Rule 4(d)(3)(B)(iii) of the Utah Rules
2 of Civil Procedure." Id.
3 The Court of Appeals of Utah reversed the trial court's decision, finding that where the 4 rules set forth a particular manner of effecting international service, that manner of service is 5 controlling and strict compliance is required, stating: 6 Rule 4 of the Utah Rules of Civil Procedure governs service of process, and 7 subsection 4(d)(3) specifically governs service of process in a foreign country. 8 See Utah R. Civ. P. 4(d)(3). In order to determine which part of subsection 4(d)(3) is applicable, we first assess whether there is an internationally agreed means of 9 service in Mexico, "such as those means authorized by the Hague Convention on 10 the Service Abroad of Judicial and Extrajudicial Documents." Utah R. Civ. P. 4(d)(3)(A). If there exists an internationally agreed means of service between the 11 countries, rule 4(d)(3)(A) is applicable. See id. If there is no internationally agreed means of service, rule 4(d)(3)(B) is applicable. See Utah R. Civ. P 12 4(d)(3)(B). 13 Id. 14 Finding that Husband had served Wife under Rule 4(d)(3)(B), instead of Rule 15
16 4(d)(3)(A), the appellate court held that the default decree of divorce was improperly entered
17 against Wife: "Husband has failed to properly serve Wife according to rule 4(d) of the Utah 18 Rules of Civil Procedure and the Hague Service Convention. As a result, service of process was 19 not properly effectuated and the trial court lacks personal jurisdiction. We therefore reverse the 20 trial court's denial of Wife's motion to set aside the default decree of divorce." Id. at 1169. 21
22 Similarly, in Ward v. Ludwig, 778 N.E.2d 650 (Ohio Ct. App. 2002), following the
23 entry of a default decree of divorce, Wife, a German citizen, entered an appearance for limited 24 purpose of contesting the trial court's jurisdiction and petitioning to vacate the judgment. Id. at 25 651. The trial court denied the petition. Id. The Ohio Court of Appeals overturned the trial 26
27 court, holding that the decree of divorce was void for lack of service. Id. at 652-53. The
28 appellate court found that Husband, who filed the action while Wife was living in Germany,
Page 22 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
was required to comply with provisions of Hague Service Convention, which was adopted by
2 Germany, and even though Wife had received actual notice of the complaint and related papers,
3 it was error for the trial court to allow alternative service by registered mail. Id. 4 The point of these cases is clear. In order for the trial court to enter a valid and binding 5 decree of divorce against a resident of a foreign nation, service must be validly made in that 6 country under the proper rule of procedure, and any applicable international service provisions. 7
8 Service which does not comply with a specifically applicable foreign service provision is
9 invalid, and no judgment may be entered thereon. Moreover, service of summons will not issue, 10 or should be quashed, if the Plaintiff does not demonstrate that the foreign resident defendant II has a sufficient a connection to the forum in which the Plaintiff seeks the summons. In re 12 Marriage of Malak, 182 Cal.App.3d 1018, 1024 (Cal. App. 3d Dist. 1986). 13
14 4) Notions of Fair Play and the Interests of Justice in the Absence of Explicit Consent
15 As a final jurisdictional consideration, the Court acknowledges that the first sentence of 16 19 GCA § 8318(a) seems to indicate that the Court is empowered to grant a decree of divorce 17 when only one party is a resident of Guam, as permitted in Williams I. However, the language 18
19 of this statute is permissive. The sentence states: "[a] divorce or dissolution of marriage may be
20 granted if one (1) of the parties has been a resident of Guam for at least ninety (90) days
21 immediately preceding the filing of a complaint for divorce, or dissolution of marriage." 19 22 GCA § 8318(a) (emphasis added). Under the statutory construction provisions of the Guam 23 Code, the word "[ s]hall is mandatory and may is permissive." 1 GCA § 724(9) (2012). The 24
25 Court is not required to grant a divorce merely because one party has met the residency
26 requirements of this first statute. The Court may do so, in its discretion, however, in order to 27 allow the Court to exercise its discretion, the Plaintiff must meet all of the requirements of this 28
Page 23 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
Chapter, including: pleading and proving the residency of the Defendant, so that the Court may
2 make the most informed decision regarding the entire action; proof of proper service of process;
3 satisfactory proof of a constitutional basis for personal jurisdiction; and satisfactory proof that 4 Guam is the best forum for the action. This idea is later emphasized in 19 GCA § 8320, which 5 states in relevant portion: "[i]n the event of uncontested, consent or default divorce actions, the 6 court may grant a divorce based upon the verified complaint of the Plaintiff or Petitioner if it 7
8 appears to be in the interests ofjustice." 19 GCA § 8320 (emphases added).
9 Most significantly, the first sentence of 19 GCA § 8318(a) cannot be read in isolation. 10 When read in conjunction with 19 GCA §§ 8318(b) and 8319, it appears that a divorce should 11 be granted when only one party is a resident of Guam AND the other party consents and 12 submits themselves to the jurisdiction of the Superior Court. When considered in light of the 13
14 mandates of the United States Constitution and the Organic Act of Guam that the Superior
15 Court of Guam cannot exercise jurisdiction over a non-resident defendant in the absence of 16 consent, it is apparent that the other manner in which the Superior Court may exercise 17 jurisdiction over a divorce action when only one party is a resident of Guam is when the non- 18
19 resident defendant is validly served with process.
20 The Court is not making the finding that a divorce can never be granted when only one 21 party is a resident of Guam, but rather, is making the finding that under Guam's long-arm 22 statute, when only one party is a resident of Guam, in order to grant the dissolution of the 23 marriage, either: 1) the non-resident Defendant must consent to the jurisdiction of the Superior 24
25 Court of Guam; or 2) the Court should be able to find minimum contacts with Guam in order to
26 abide by the Constitution and the Organic Act, so as not to violate the interests of justice. 27
Page 24 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
Above all, the Court must have proper proof of service of process or a validly executed waiver
2 of service in order to exercise its jurisdiction.
3 In this case, as plead, the Court finds none of the hallmarks of the notions of fair play, 4 and finds nothing to show that the grant of this divorce would be in the interests of justice. This 5 appears to be a divorce by surprise against a non-resident Defendant (perhaps a resident of a 6 foreign country) with no ties to Guam, who has not been properly served, nor received actual 7
8 notice of the proceedings. The method of service already attempted by the Plaintiff does not
9 conform to the proper methods of effecting international service, in that it appears that the 10 Defendant is most likely a resident of Indonesia, and personal service under GRCP Rule 4(f) II has never been attempted. 12 The Court finds that even if Guam law permits the Superior Court of Guam to divide the J3
14 action for divorce and enter a decree divorcing the parties based on the residence of one of the
15 parties, the holdings of Williams I and Nicastro require that the Court must have proof that its 16 exercise of personal jurisdiction over the Defendant does not violate the due process clause, in 17 the form of proof of proper service. Williams I, 317 U.S. at 299; see also Rule 4(f) and 4(1); and 18
19 Nicastro, 131 S. Ct. at 2787 and 2789-90. The Court is not apprised of the Defendant's current
20 residency, such that the complaint is in violation of statutory requirements, the Local Rules of 21 the Superior Court, and the service requirements of GRCP Rule 4. Because the complaint is 22 silent regarding the Defendant's residency, the Court is unable to determine: 1) whether service 23 under the laws of Guam and the United States, including 7 GCA 14106, is applicable to the 24
25 Defendant; and 2) whether Guam is an appropriate forum for this action. There appears to be no
26 reason that the Plaintiff cannot comply with the pleading provisions of 19 GCA § 83J9(a), and 27 inform the Court of the Defendant's current residence. If the Defendant is a resident of 28
Page2S of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
Indonesia, then it appears that service can only be made in accordance with GRCP Rule 4(£)(2)
2 or (3), and Plaintiff's request for service through 7 GCA § 14106 is inapplicable. Without any
3 plain allegations as to the residency of the Defendant, other than those allegations which 4 indicate that the Defendant is a resident of a foreign nation, the Plaintiff has failed to convince 5 the Court that justice will be served by any attempt to exercise jurisdiction over the Defendant 6 at this time, and the Complaint for Divorce is DISMISSED WITH LEAVE TO AMEND. 7
8 CONCLUSION
9 Based upon its review of the complaint and other documents as part of the Court's 10 analysis of personal jurisdiction made pursuant to the Plaintiff's request for default judgment, 11 the Court finds that the Plaintiff has failed to plead and prove the residency of the Defendant in 12
J3 any United States Jurisdiction, and fails to allege any means by which the Court could exercise
14 personal jurisdiction over the Defendant in consideration of the notions of fair play and justice. 15 The Plaintiff has failed to plead the residency of the Defendant in order for the Court to 16 determine whether the Defendant is subject to service of process under 7 GCA § 14106, as 17 permitted by Rule 4( e) and the laws of Guam, or whether the Defendant is a resident of a 18
19 foreign country who must be served in accordance with Rule 4(£). Under the facts declared by
20 the Plaintiff in his current complaint and other affidavits, the Defendant is not a resident of a 21 United States jurisdiction, and 7 GCA § 14106 is not applicable; rather, GRCP Rule 4(£) must 22 be applied. Currently, the Plaintiff has plead and proved facts which highly suggest that the 23 Defendant is only subject to service under Rule 4(£), thus negating service by publication and 24
25 mailing under the laws of Guam, as permitted under Rule 4(e)(1), and thus requiring that the
26 motion requesting an Order for Publication of Summons be DENIED at this time. 27
Page 26 of27 Decision and Order Domestic Case No. DM0325-12; Chulani v. Topandasani
Consequently, as the Court has no allegations of residency and cannot detennine proper
2 service based thereon, the Complaint for Divorce is also DISMISSED without prejudice, with
3 LEAVE TO AMEND within thirty (30) days of the date of this order. 4 This dismissal is effected in order to allow the Plaintiff an opportunity to plead and 5 prove some facts regarding residency and service which would allow this Court to make a 6 finding that an exercise of personal jurisdiction over the Defendant would be proper. Plaintiff 7
8 must plead and prove the residency of the Defendant as required under 19 GCA § 8319, CVR
9 10.1, and GRCP Rule 8(a), in order to allow the Court to detennine what manner of service is 10 applicable to the Defendant under GRCP Rule 4, and thereafter detennine whether such service II of process has been made. Otherwise, the Plaintiff must plead and prove facts regarding the 12
explicit consent of the Defendant, the minimum contacts of the Defendant, or other facts 13
14 sufficient for the Court to authorize alternative service and acquire long-ann jurisdiction over
IS the Defendant such that it does not offend the notions of fair play and justice under 7 GCA § 16 14109, the Organic Act, and the United States Constitution. 17
20 IT IS SO ORDERED this _ _ _ _ _ _ _ _ __ 21
22 HONORABLE ARTHUR R. 23 Judge, Superior Court of Guam 24
Page 27 0[27
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