Hemlani v. Hemlani
Opinion
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6 IN THE SUPERIOR COURT OF GUAM
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8 V ASUDEV B. HEMLANI, ) DOMESTIC CASE NO. DM0660-13 9 )
Plaintiff, )
10 v. ) DECISION AND ORDER
PRERNA V. HEMLANI )
II )
Defendant. )
12 _______________________ )
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14 INTRODUCTION 15 Pursuant to Rule 7.1 of the Local Rules of the Superior Court of Guam, Defendant's 16 Motion of Relief from Default Judgment was taken under advisement by the Honorable Judge 17 Michael J. Bordallo on September 11,2014. Plaintiff was represented by attorney Zachary C.
18 Taimanglo. Defendant was represented by attorney Daniel J. Bennan. Having reviewed the 19 memorandum and papers presented, the Court now issues the following decision denying 20 Defendant's motion.
21 BACKGROUND
22 This matter arises out of a November 27, 2013, complaint for divorce. Cmpl. at 1. A 23 declaration of service was filed on December 4, 2013. The declaration asserts Defendant was 24
25 served personally with the Complaint on December 3, 2013. Default was entered on January
26 22, 2014, and an interlocutory and final decree of divorce was entered on April25, and 28, 2014 27 respectively.
I.
2 On July 28,2014, Defendant filed a motion of relief from default judgment. In it she 3 asserts she did not understand the summons and complaint served upon her, was not served with 4 the motion to enter default or entry of default, and was misled by Plaintiff and his daughter in 5
6 law, attorney Minakshi Hemlani, through acts contrary to Indian custom, into believing that
7 Plaintiff was not seeking a divorce. /d. at 2-5. She further asserts that she did not understand 8 the premarital agreement, was never provided a complete copy of it, was not allowed competent 9 legal counsel which could explain or review the agreement with her, and that the premarital 10 agreement was presented to her and signed in a manner and method which constituted duress.
II
12 /d. at 5-8. As to the merits, Defendant denies the grounds asserted in the complaint to support
13 irreconcilable differences and denies that she was ever unfaithful or disloyal. /d. at 8-10. She 14 argues that the above assertions are sufficient to merit the entry of an order setting aside the 15 default and allowing for an order mandating mediation and counseling. /d. at 10-14.
16 II.
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18 Plaintiff filed his opposition on August 25, 2014. Opp. at 1. In it he emphasizes that
19 Defendant was properly served with the summons and complaint and citing to the Court's local 20 rules, he argues that service of his motion for default was not required. /d. at 1 and 5. Plaintiff 21 disputes Defendant's assertion that she does not understand English. /d. at 2-3. He concedes that 22 while Defendant has difficulty following local accents, she can read, write and speak English, is 23
24 the holder of two master's degrees in English-related studies, was employed as an English tutor
25 in India when she and Plaintiff met and prior to that taught, English in two educational
26 institutions between 1997 and 2001. Id. at 2-3. Plaintiff also argues and asserts that Defendant 27 was married previously, underwent a lengthy divorce, and brought her own attorney to review 28 the premarital settlement agreement. Id. at 3A. He argues that these assertions evidence
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Defendant is familiar with the importance of seeking out the advice of independent legal 2 counsel. !d. at 4.
3 Plaintiff further denies that he or his daughter acted deceitfully or that his daughter ever 4 acted as Defendant's attorney. Jd. He disputes that after filing for divorce her continued use of 5
6 his home was welcome, productive or peaceful, he often requesting that she leave and she
7 making assurances that she would leave. /d. at 6. He asserts that Defendant deliberately chose 8 to take no action, telling Plaintiff that she intended to do nothing in the case. !d. at 5.
9 Plaintiff argues that Defendant has not met her burden of showing the existence of a 10 meritorious defense, the parties' disputes by their nature and definition constituting differences II
12 which are irreconcilable. !d. at 7. As to the challenges to the parties' premarital agreement
13 Plaintiff argues that it is valid on its face. !d. at 8. It is governed by an arbitration agreement, it 14 was reviewed by the parties' independent attorneys, it was initialed on each page by the parties, 15 and any assets it covered have been sold and given to Defendant. ld. As to prejudice Plaintiff 16 argues that setting aside the default, thereby chaflging his legal status as a single person would 17
18 legally prejudice him by binding him again to Defendant/d. at 8-9.
19 III.
20 Defendant filed her reply on September 8, 2014. Reply at I. In it she refers to the 1998 21 Guam Supreme Court's statement of its policy disfavoring default judgments. /d. Citing the 22 same opinion Defendant argues that there is no evidence she engaged in culpable conduct that 23
24 led to the default, that she has a meritorious defense and that Plaintiff will suffer no prejudice.
25 /d. at 2~6. Reiterating her believe of reconciliation Defendant cites a 1984 U.S. Federal 9th
26 Circuit case that explained a movant's assertions of fact in a request to set aside are to be 27 viewed as true. !d. at 3. Defendant argues that given her belief of reconciliation, a divorce 28 decree should not enter absent an order of mediation and counseling. !d. at 5. She extends this argument to her assertions that the premarital agreement was signed under duress and without 2 consideration. !d. at 4. Defendant disputes that Plaintiff's asserted prejudice in maintaining his 3 legal single status is sufficient to support a finding of prejudice and reasserts her argument that 4 any prejudice to him would be minimal. !d. at 6. Lastly Defendant argues that she has asserted 5
6 sufficient facts to justify a finding setting aside the default under Rule 60(b)(l) or 60(b)(6) of
7 the Guam Rules of Civil Procedure. /d. at 8. She argues that allowing default will preclude her 8 from the opportunity to undergo counseling with her husband and damage her community 9 property rights by enforcing a suspect premarital agreement. /d. at 9.
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II
12 DISCUSSION
13 Rule 60(b) of the Guam Rules of Civil Procedure regulates when a judgment may be set 14 aside. Guam R. Civ. P. 60(b). It provides, 15 On motion and upon such terms as are just, the court may relieve a party or the 16 party's legal representative from a final judgment ... for the following reasons:
1. mistake, inadvertence, surprise, or excusable neglect; [or]
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18 6. any other reason justifying relief from operation ofthe judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2), (3)
19 not more than one year after the judgment, order, or proceeding was entered or taken....
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21 !d.
22 The standards for denying a Rule 60(b) motion are if "(!) the defendant's culpable 23 conduct led to the default, (2) the defendant has no meritorious defense, or (3) the plaintiff 24 would be prejudiced if the judgment is set aside." Midsea Industrial, Inc., v. HK Engineering, 25 Ltd., 1998 Guam 14 ~ 5. It must also be kept in mind that default judgments are generally 26
27 disfavored and deciding a case on its merits is encouraged whenever possible. !d. at 1j7.
28 As explained by the Guam Supreme Court the test to determine whether a default should be set aside is disjunctive. !d. Whether a movant is in part culpable of the default, lacks 2 a meritorious defense or whether default would cause prejudice are all justifiable reasons to 3 support denial. Id. Here the Court takes judicial notice of the papers and testimony elicited in 4 Protective Order Case No. P00080·14. After receiving testimony from the Defendant in 5
6 regards to the issues in Case No. P00080-14, observing her cowttenance, responsiveness and
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