Kim v. Cha

• Court: Superior Court of Guam
• Decided: January 22, 2019
• Docket: DM0376-19
• Status: Unknown

Opinion

FILED 1 Th19 JAN 22 1 LL 52 2

SUPERIOR QURT OF GUAM 4

6 IN THE SUPERIOR COURT OF GUAM 7

8 EDWARD AHN KIM,

Plaintiff, Domestic Case No. DM0376-16 10 vs. 11 DECISION AND ORDER MIN SUN CHA, 12 Defendant. 13

15 INTRODUCTION

16 Defendant wants a stay of this Court’s decision until after an appeal is decided by the

17 Supreme Court of Guam. This matter is before the Honorable Michael I. Bordallo. Plaintiff

18 Edward Ahn Kim (“Plaintiff’) is represented by Daniel S. Somerfieck, Esq. of Somerfieck &

19 Associates, PLLC. Defendant Mm Sun Cha (“Defendant”) is represented by Gloria L. 20 Rudolph, Esq. of Lujan & Wolff, LLP. After having received and reviewed the papers, 21 .

arguments, and the file herein, the Court hereby GRANTS the Motion For Stay Pending 22 Appeal (“Motion For Stay”). 23 BACKGROUND 24 This matter arises out of Plaintiffs Complaint for Divorce (“Complaint”) filed July 18, 25 2016. Defendant failed to respond to the Complaint after numerous attempts at service of 26 Page; of 4 1 process, including publication, and a year after the Complaint, on July 25, 2017, the Court

2 entered both an Interlocutory Default Judgment of Divorce and a final Decree of Divorce

(“Final Decree”). That same day, July 25, 2017, the Court granted to Plaintiff sole legal and

physical custody, pendente lite, of the parties’ minor child, Alexander Cha Kim (DOB: 5 09/24/14) (“Minor”). Defendant was ordered to immediately return Minor from Korea to Guam 6 to be placed in Plaintifrs care. Eight months later, on March 28, 2018, Defendant through 7 counsel finally made her first appearance in the case and moved the Court to set aside the entry 8 of default judgment and the Final Decree on the basis of various arguments related to

inadequate service of process. The Court issued a Decision and Order (“Decision and Order”)

on June 28, 2018 denying this Motion. Decision and Order 6. On July 13, 2018, Defendant

12 appealed the Decision and Order to the Supreme Court of Guam. Two weeks later, Defendant

13 filed a motion to stay the Decision and Order pending the appeal. Mot. for Stay Pending

14 Appeal. The matter of the Motion For Stay is now before the Court.

15 FACTS 16 1. The parties were married in Seoul, Korea on Oct. 14, 2012 and separated on June 11, 17 2016 after three years and seven months of marriage. Compl. for Divorce, 1, 2. 18 2. They have one child, a boy, now four years old: Alexander Cha Kim (DOB 9/24/20 14). 19 Id. at2. 20 3. On April 29, 2016, Defendant and Minor traveled to Korea. Id. at 2. 21 4. Plaintiff believed this trip to be a six-week visit, but Defendant and Minor never 22 returned to Guam. Plaintiff stated that the parties’ date of separation was June 11, 2016, 23

24 apparently on or about the day they were supposed to return but did not. Ex Parte Mot.

25 For Order to Show Cause Re: Pendente Lite Custody Orders and Mem. of P. & A. 2,

26 Mar. 8, 2017.

Page 2 of 4 1 5. Defendant and Minor still have not yet returned to Guam in spite of court orders to

2 Defendant to return Minor to Plaintiff on Guam. See Order After Hearing, July 25,

2017.

6. The divorce was finalized and the final decree issued with no opposition or 5 communication from Defendant in spite of multiple attempts at service, including 6 publication. Declaration of Publication, Sep. 14, 2016; Final Decree of Divorce, Jul. 25, 7 2017. 8 7. Eight months after the final divorce decree, on Mar. 8, 2018, Defendant made a first

appearance in the case in which she moved the Court to set aside the divorce decree due 10

to inadequate service of process. Mem. in Supp. of Def.’s Mot. to Set Aside Entry of

12 Default J. Under Rules 60(b) and 55(c) And to Vacate Warrants.

13 8. This Court denied the Motion to Set Aside in the Decision and Order, and Defendant

14 filed an appeal of that decision to the Supreme Court of Guam. Notice of Appeal, July

15 13, 2018. 16 9. Defendant then filed the Motion For Stay on July 30, 2018. 17 10. The Court will now address the matter of Defendant’s Motion For Stay. 18 ISSUE 19 1. Whether this Court should grant the Motion For Stay. 20 PRINCIPLES OF LAW 21 This Court has discretionary authority to stay an injunction pending an appeal. ç 22 Guam R. Civ. P. 62(c). With regard to technical defects in service of process, Courts are split 23

24 about whether actual service can cure such technical defects. See, e.g., Elbardissy v. Beta Theta

25 Conn. Super. Ct., Docket No. CV-1560l3917-S (2016); Murphyv. Price, 131 Or. App. 693,

26 698-99 (1994); Bibble v. Car-Lene, mc, 67 Cal. App. 4th 295, 313 (1998); Lenoir v. Fed.

Page 3 of 4 1 Deposit Ins. Corn., 709 F. Supp. 830, 832 (N.D. Ill. 1989); Williams v. Williams, 150 S.W.3d

2 436, 443-44 (Tex. App. 2004). The Supreme Court of Guam has not yet reached the issue of

“whether actual notice may cure a technical defect in service.” Pineda v. Pineda, 2005 Guam 10

¶ 18 n. 7. With regard to a stay bond, “[n]o such security shall be required” of a party in 5 domestic relations cases. Guam R. Civ. P. 65(c). 6

7 ANALYSIS

8 Although this Court denied Defendant’s motion to set aside the interlocutory divorce

9 decree and Final Decree, Defendant has made an appeal of that decision to the Supreme Court

10 of Guam. No evidence suggests that the Motion For Stay is frivolous or that Defendant is

otherwise filing it in bad faith, such as to try to delay proceedings. Considering the split among 12 jurisdictions over the issue of whether actual service can cure a technical deficiency in how 13 process is served, and considering that the Supreme Court of Guam has not settled the matter, 14 Defendant’s appeal does not seem unusual. Because this case is a domestic relations case, no 15 party will be required to post a security bond, per GRCP 65(c). This Court finds, in its 16 discretion, that it is best to await the outcome of the appeal before proceeding with other 17 matters in this case, since the decision of the appeal could affect or undo any decisions this 18

19 Court might make about the case now. Therefore this Court will grant the Motion For Stay.

20 CONCLUSION AND ORDER

21 For the reasons set forth above, the Court GRANTS Defendant’s Motion For Stay

22 Pending Appeal.

23 SO ORDERED, this 2__—ay of________________ 019.

24 SER’!CE VIA COUR 25 Iacknoweage H ORABLE MICHAEL J. BORDALLO 26 Judge, Superior Court of Guam

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