Gallucci v. Gallucci aka Cronk

Opinion

FiLED’

2

3 71119 OCT 28°i 2: L4

SUPERIOR COUR

OF GUAM

6 7 8 IN THE SUPERIOR COURT OF GUAM

9 GUIDO GALLUCCI, DOMESTIC CASE NO. DM060148 10 PLAINTIFF,

11 DECISION AND ORDER vs. [1] Motion to Dismiss 12 [2] Motion to Strike or for Leave MICHELLE LYNN GALLUCCI, [31 Motion for Leave 13 aka MICHELLE L. CRONK,

14 DEFENDANT.

15 16 INTRODUCTION 17 This matter came before the Honorable Anita A. Sukola on July 25, 2019, upona Motion to 18 Dismiss Pursuant to Guam Rules of Civil Procedure Rule 12(b)(2). The Motion was filed by

19 DEFENDANT MICHELLE LYNN GALLUCCI aka MICHELLE L. CRONK (“Cronk”). She

20 is represented by Attorney Daniel S. Somerfieck. PLAJNTWF GUIDO GALLUCCI (“Gallucci”)

21 filed a Motion to Strike, or alternatively, for Leave to File Plaintiff’s Supplemental Declaration.

He,

22 then, filed another Motion for Leave for the dismissal. Gallucci is represented by Attorney Daniel J.

23 Berman. Upon review of the pleadings, oral arguments and legal authorities presented by the Parties,

24 the Court hereby DENIES the Motion to Dismiss and finds all other motions MOOT.

25 BACKGROUND 26 Gallucci and Cronk married on February 14, 2009, in New York, where they then resided. 27 (Cronk Dect. at ‘/5 2-3.) In July 2013, Gallucci began working as a pilot for United Airlines. 28 (Galtucci Dect. at if 18-19.) Cronk works for the New York Mets. (Crank Dect. at 8.) Gallucci

DM0601-I 8 Guido Gallucci v. Michelle Lynn Gailticci aka Michelle L. Cronk DECISION AND ORDER (Motion to Dismiss, Motion to Strike or for Leave, and Motion for Leave)

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1 was able to fly between New York and Guam; however United Airlines required he relocate to

2 Guam. (Cronk DecL at ¶ 3, 8; Gallucci Deci. ¶ 20.) In November 2013, the Parties physically

3 separated. (Gallucci Deci. at ¶ 19.) On December 10, 2018, Gallucci relocated to Guam while Cronk

4 remained in New York. (Cronk DecL at ¶5 2-3, Gallucci Deci. at ¶ 20.) Gallucci avers he has

5 established residency on Guam since relocating. However, Cronk asserts Galluéci still receives mail

6 at her parents’ residence in New York. (Cronk Dect. at ¶ 3.) (Gatlucci Deci. at ¶ 20.) Meanwhile,

7 Cronk has never visited, resided in or worked in Guam. (Cronk Dect. at ¶4.)

8 Gallucci states the Parties first discussed divorce in November 2017. (Galtucci Deci. at ¶56-

9 7.) Conversely, Cronk states it began in May 2018. (Cronk Deci. at ¶ 3.) On November 1, 2018,

10 Gallucci filed for divorce in the Superior Court of Guam, declaring irreconcilable differences.

11 (Gattucci Deci. at ¶ 11; Compi. at ¶5 V, lx.) Gallucci states they have no children, no undivided

12 community property, no community debt and no dispute for sep4rate property. (Compt. at if e, VI-

13 VIII, Galtucci Dect. at ¶5 22-23.) Gallucci claims Cronk has never claimed or requested any

14 property, community or separate, from his earnings or assets. (Gallttcci Deci. at ¶ 5.) Cronk filed for

15 divorce in Suffolk County, New York on December 19, 2018. (Cronk at ¶ 5; Opp’n at 2). Cronk

16 argues Gallucci should have addressed their undivided community property, undivided community

17 debt, reasonable maintenance, alimony and medical insurance. (Cronk at ¶[ 6-7.)

1$ Gallucci filed a Verified Complaint for Divorce in Guam on November 1, 2018. It was

19 served November 30, 2018. (Gattucci Deci. at ¶ 11; Cronk DecL at ¶5.) In lieu of answering, Cronk

20 filed an Action for Divorce in New York on December 19, 2018, which has yet to be served. (Cronk

21 Supp. at 3.) Cronk then filed a Motion to Dismiss and her supporting Declaration on January 9,

22 2019. Gallucci filed an Opposition and his supporting Declaration on February 5, 2019. On February

23 20, 2019, Cronk filed a Reply and its supporting declaration, which detailed their marital discussions

24 and property. On March 22, 2019, Gallucci filed a Motion to Strike or for Leave, arguing the

‘25 declaration was improper. Cronk opposed on April 19, 2019. Gallucci replied on April 26, 2019.

26 Then on October 8, 2019, Gallucci filed another Motion for Leave regarding the dismissal. Oral

( 7 arguments were only heard on the Motion to Dismiss and Motion to Strike or Leave on July 25,

28 2019, when the Court took the matter under advisement.

DMO6OI-18 Guido Gallucci v. Michelle Lynn Gallucci aka Michelh L. Croak DECISION AND ORDER (Motion to Dismiss, Motion to Strike or for Leave, and Motion for Leave) Page 2 of 6 1 DISCUSSION 2 Cronk argues the Verified Complaint for Divorce should be dismissed as Guam’s courts lack

3 personal jurisdiction over her. (Mat. Dismiss at 2.) Gallucci opposes, arguing the Complaint should

4 not be dismissed due to the concept of divisible divorce. (Opp ‘ii at 4.) Under Rule 12(b) Guam

5 Rules of Civil Procedure Rule 12(b) for motions to dismiss, it states:

6 Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall 7 be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by 8 motion: .. lack of jurisdiction over the person[.J .

9 GRCP 12(b). On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden

10 of proof in establishing personal jurisdiction. Perez v. U.S., 103 F.Supp. 3d 1180, 1196 (S.D. Cal.

11 2015) (citing Farmers Ins. Exch. v. Portage La Prairie Mut. Ins. Co., 907 f.2d 911, 912 (9th Cir.

12 1990); Mavrix Photo, Inc. v. Brand Technologies, Inc., 674 F.3d 1218, 1223 (9th Cir. 2011). The

13 burden of proof only requires a prima Jacie showing of reasonable particularity. Mavrix at 1223;

14 Frungillo v. Imperia Entm’t, Inc., 2015 WL 619628, at *3 (E.D. Cal. 2015) (citing Mellon Bank CE.)

15 PSfS Nat. Ass’n. v. Farino, 960 F.2d 1217, 1223 (3rd Cir. 1992)). While a plaintiff may not rest on

16 bare allegations alone, any uncontroverted evidence is taken at face value. Perez at 1196. On the

17 other hand, conflicting statements between the parties are resolved in favor of the plaintiff. at 18 1196-97. Nevertheless, courts have discretion concerning a ruling for dismissal. Speicher at ¶ 2 1-22.

19 A. Dismissal is Improper as Guam May Grant the Dissolution of Marriage. 20 Guam can maintain jurisdiction over the dissolution of marriage under the concept of

21 divisible divorce. Speicher v. Speicher, 2013 Guam 11 ¶ 18. The Supreme Court of Guam holds the

22 sole issue of dissolution of marriage can be ordered so long as the court maintains jurisdiction over a

23 party. jç at ¶(J[ 14, 20. When a complaint satisfies the statutory requirements for the dissolution of

24 marriage and the court has jurisdiction over at least one party, that court can grant the dissolution of

25 marriage. at ¶ 20 (stating the court has no discretion when irreconcilable differences are the basis

6 for the sole issue of dissolution of marriage).

Despite Cronk’s contentions, the matter at hand closely resembles Speicher. In Speicher, the C J8 wife first filed for divorce in Hawaii. Then, the husband also filed the same in Guam, stating

DM060118 Guido Gall icci v. Michelle Lynn Gallucci aka Michelle L. Cronk DECISION AND ORDER (Motion to Dismiss, Motion to Strike or for Leave, and Motion for Leave) Page 3 of 6

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1 irreconcilable differences. The husband owned a Guam driver’s license, worked in Guam and filed

2 income tax to Guam. In contrast, the wife had never resided in, worked in or visited Guam. She

3 resided in Hawaii, the location of some marital property. Thus, the wife filed a motion for dismiss

4 for lack of personal jurisdiction, stating she lacked certain minimum contacts with the forum. The

5 Supreme Court of Guam held that despite lacking personal jurisdiction over the wife, dismissal of

6 the complaint was improper as Guam could still grant the dissolution of the mamage. Guam

7 maintained jurisdiction over the matter because the husband was a Guam resident; thus, dissolution

$ was possible through divisible divorce. Speicher at ¶ 24.

9 Here, both Parties filed for divorce in different jurisdictions: Gallucci in Guam and Cronk in

10 New York. Cronk also filed a Motion to Dismiss against Gallucci’s Complaint. She argued a lack of

11 personal jurisdiction as she had never worked in, resided in or visited Guam. However, Gallucci

12 argues he established residency on Guam since December 2013, when his employment required

13 relocating. (Gatlucci Dect. at 9120.) While Cronk does not dispute Gallucci’s reason for relocating,

14 she avers Gallucci was in New York in June, July and August 2018. (Cronk Deci. at 9/3.)

15 The Court finds dismissing Gallucci’s Complaint would be improper for the same reasons as

16 Speicher. The dissolution of marriage does not depend on the settlement of property disputes. Id. at ¶

17 18. Although the Parties have a dispute of martial property, it does not prevent Guam from granting

18 a divorce. “Divisible divorce is based on the principle under which financial responsibility and

19 marital status maybe separately litigated at different times and different forum.” at ¶ 17 (citing 20 re Marriage of Gray, 204 Cal. App. 3d 1239, 1248 (1988) (internal quotations omitted).

21 Dissolution of marriage requires a party’s residency to be pled and proven. 19 GCA § 8319.

22 “A divorce or dissolution of marriage may be granted if one (1) of the parties has been a resident of

23 Guam for at least ninety (90) days immediately preceding the filing of a complaint for divorce, or

24 dissolution of marriage.” at § 8318. If a party is physically present in Guam for at least ninety 25 (90) days prior to filing, then residence is only presttmptivety concluded. IcL at § 83 18-19.

6 Therefore, so long as Guam’s statutory requirements for the dissolution of marriage are satisfied, the

27 Court must deny Cronk’s Motion to Dismiss. Speicher at ¶ 20 (“{T]he trial court does not have ç 2)8

DM0601-Is Guido Gallucci v. Michelle Lynn Gallucci aka MichelIeL. Cronk DECISION AND ORDER (Motion to Dismiss, Motion to Strike or for Leave, and Motion for Leave) Page 4 of 6

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1 discretion on whether or not to grant the dissolution of the marital relationship given that the trial

2 court has jurisdiction over [the husband].”)

3 Gallucci satisfies his burden of proving residency since he relocated and established

4 residency in Guam since December 2013. Even if Cronk rebuts the presumption of residency under

5 Section 8318, Gallucci still has pled and proved his residency in Guam. In July 2013, Gallucci was

6 hired by United Airlines, which required relocating to Guam. (Gattucci Deci. at if 18-19.) Gallucci

7 and physically Cronk separated in November 2013 through Cronk’s request. Iç at ¶ 19. On

8 December 10, 2013, Gallucci relocated from New York to Guam and has since then established

9 permanent residency. Id. at ¶ 20; (Opp ‘n at 6.) (Compl. at Part III.) Moreover, Cronk is aware of

10 Gallucci’s relocation since December 2013, which she has not disputed. (Berman Dect. at Ex. A 9/

11 12.) As of filing, Gallucci remains employed with United Airlines. (Cronk Dect. at 9/3, 7-8.) (Reply

12 at 2.) Gallucci’s continued employment reasonably assumes a continued residence on Guam. 13 Furthermore, Gallucci needs only prove a prima facie showing of residency, which the Court

14 believes has been reasonably established.

15 In the interest of judicial efficiency, courts may exercise discretion over motions to dismiss.

16 Speicher at ¶ 21 (citing Simmons v. Superior Court, 96 Cal. App. 119, 123-24 (1950)). Here, the

17 Court may maintain jurisdiction, but only over the dissolution of marriage.2 Id. at ¶91 20, 22. A court

18 cannot distinguish one’s right to property without having proper jurisdiction over that party.

ç

19 Vanderbilt v. Vanderbilt, 354 U.S. 416, 418 (1957) (“Since the wife was not subject to its

20 jurisdiction, the Nevada divorce court has no power to extinguish any right which she had under the

21 law of New York to financial support from her husband.”) Divisible divorce goes beyond a

22 jurisdictional concept; it has strong policy interests as well, such as avoiding duplicity. Speicher at

23 ¶91 12, 18-19, 24. The Full Faith and Credit Clause allow adjudication of the marital status without 24 Gallucci also proves residency on Guam through the residency requirements for Guam elections. The Rules for 25 Determining Residency states: “(1) The residency of a person is that place where that person lives for a period of at least thirty (30) days, maintains that person’s home and to which, whenever that person is absent, that person has the 26 bona fide intention to return.. . Indicia of residence on Guam shall include, but not be limited to, payment of Guam .

personal income taxes, maintaining a home or other living accommodation on Guam, having temporarily departed Guam with the intentioi of returning, and not being registered to vote in any other U.S. jurisdiction since departing Guam.” 3 GCA § 9123. 2 This finding is limited to the issue of dissolution of marriage under divisible divorce. The Court makes no finding as to the Parties’ property dispute. Supra Part B.

DM0601-Is Guido Gall!Jcci v. Michelle Lynn Gallucci aka Michelle L. Cronk DECISION AND ORDER (Motion to Dismiss, Motion to Strike or for Leave, and Motion for Leave) Page 5 of 6 1 overstepping potential property rights. Id. at ¶ 17. See Ich at 16 (“The U.S. Supreme Court held that

2 under the full Faith and Credit Clause . . . New York had to respect Nevada’s dissolution of the 3 marriage relationship, but Nevada could not remove the wife’s intangible property interests

4 without in personam jurisdiction.”)

5 B. Dismissal is Improper as the Factual Matter Requires Further Development. 6 There is impropriety in raising arguments for the first time in a reply to an opposition. The

7 Ninth Circuit has held that federal trial courts “need not consider arguments raised for the first time

$ in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Raising new arguments in a

9 reply deprives the non-movant of the opportunity to respond to the arguments. The Parties here share

10 the same circumstance. Cronk’s moving papers did not address the new facts and arguments raised

11 in her Declaration in support of her Reply. The Court finds the filing of Cronk’s Reply, Gallucci’s

12 motions, their subsequent oppositions and replies, and Cronk’s intent for additional motions further

13 prove that dismissal would be improper. The new issues prove that the factual record should be

14 further developed to inform the Parties of which material facts are at issue and which are undisputed.

15 The Court finds that a motion to dismiss is improper. Because Guam has jurisdiction over

16 Gallucci, and his pleadings satisfy the statutory requirements for dissolution of marriage, this forum

17 is permitted to rule on the Parties’ dissolution of marriage. Speicher at ¶[ 14, 18, 20. Moreover,

1$ divisible divorce would allow the Parties’ dissolution of marriage and other disputed issues to move

19 forward— separately— in the jurisdiction deemed proper, satisfying certain public policy interests.

20 This matter also requires further development as demonstrated by the Parties’ additional motions and

21 filings. Therefore, the Court finds dismissal of the Complaint improper for these reasons above.

22 CONCLUSION 23 By preponderance of the evidence and based on the foregoing conclusions, the Court

24 DENIES Cronk’s Motion to Dismiss. Gallucci’s additional Motions are now MOOT.

25 SO ORDERED this of October 2019.

28 e Honorable Anita A. Sukola Judge, Superior Court of Guam

DMO6O(-lLQi2afici v. Michelle Lynn Gallucci aka MichelleL. Cronk DEISiO1Aib ORDER (Motion to Dismiss, Motion to Strike or for Leave, and Motion for Leave) Page 6 of 6