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6 IN THE SUPERIOR COURT OF GUAM 7
8 EDWARD AHN KIM,
9 Plaintiff, Domestic Case No. DM0376-16
10 VS.
DECISION AND ORDER
MIN SUN CHA, 12 Defendant.
13
14 INTRODUCTION
15 The Supreme Court of Guam has ordered this Court to consider whether defaultjudgment 16
17 was properly entered in this case under the Hague Convention on the Service Abroad of Judicial
is and Extrajudicial Documents in Civil or Commercial Matters (“the Convention”). This matter is
19 before the Honorable Michael J. Bordallo. Plaintiff Edward Ahn Kim (“Kim”) is represented by 20 Daniel S. Somerfieck, Esq. of Somerfieck & Associates, PLLC. Defendant Mm Sun Cha (“Cha”)
21 is represented by Gloria L. Rudolph, Esq. of Lujan & Wolff, LLP. After having received and 22 reviewed the papers, arguments, and the file herein, the Court hereby finds that default judgment 23 was properly entered under the Convention.
24 1 BACKGROUND 2 This matter arises out of Kim’s Complaint for Divorce (“Complaint”) filed July 18, 2016.
Cha failed to respond to the Complaint after numerous attempts at service of process, including 4 publication, and a year after the Complaint, on July 25, 2017, the Court entered both an 5 Interlocutory Default Judgment of Divorce and a Final Decree of Divorce (“Final Decree”). That 6 same day, July 25, 2017, the Court granted to Kim sole legal and physical custody,pendente lite, of
the parties’ minor child, A.C.K. (DOB: 09/24/14) (“Minor”). Cha was ordered to immediately 8 return Minor from South Korea to Guam to be placed in Kim’s care. Eight months later, on March
10 28, 2018, Cha through counsel finally made her first appearance in the case and moved the Court to
11 set aside the entry of default judgment and the Final Decree on the basis of various arguments 12 related to inadequate service of process. The Court issued a Decision and Order (“Decision and 13 Order”) on June 28, 2018 denying this motion. On July 13, 2018, Defendant appealed the Decision 14 and Order to the Supreme Court of Guam. On April26, 2019, the Supreme Court of Guam issued a 15 Limited Remand Order, ordering this Court to consider Kim’s claim that default judgment was 16 properly entered under the Convention. On April 30, 2019, the Court ordered the parties to brief 17
18 the issue of whether default judgment was proper under the Convention. Both parties filed briefs
19 onMay2o,2019.
20 FACTS 21 1. The parties were married in Seoul, Korea on October 14, 2012, and separated on June 11, 22 2016, after three years and seven months of marriage. Compl. for Divorce, 1, 2 (July 25, 23 2017).
24 2. They have one child, a boy, now four years old. Id. at 2.
25 3. On April 29, 2016, Cha and Minor traveled to Korea. Id.
.
1 4. Kim believed this trip to be a six-week visit, but Cha and Minor never returned to Guam.
2 Kim stated that the parties’ date of separation was June 11, 2016, apparently on or about
the day they were supposed to return but did not. Ex Parte Mot. For Order to Show Cause 4 Re: Pendente Lite Custody Orders (Mar. 8, 2017).
5 5. Cha and Minor still have not yet returned to Guam in spite of court orders to Cha to return 6 Minor to Kim on Guam. See Order After Hearing (Jul. 25, 2017).
6. The divorce was finalized and the final decree issued with no opposition or communication 8
9 from Cha in spite of multiple attempts at service, including publication. Declaration of
10 Publication (Sep. 14,2016); Final Decree of Divorce (Jul. 25, 2017).
11 7. Eight months after the final divorce decree, on March 28, 2018, Cha made a first 12 appearance in the case in which she moved the Court to set aside the divorce decree due to 13 inadequate service of process. Mem. in Supp. of Def.’s Mot. to Set Aside Entry of Default
J. Under Rules 60(b) and 55(c) And to Vacate Warrants (Mar. 28, 2018).
15 8. On June 28, 2018, the Court issued a Decision and Order denying Cha’s Motion to Set 16 Aside Entry of Default. Cha filed an appeal of that decision to the Supreme Court of Guam.
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18 Notice of Appeal (Jul. 13, 2018).
19 9. On January 22, 2019, this Court granted Cha’s Motion for Stay Pending Appeal.
20 10. On April 26, 2019, the Supreme Court of Guam issued a Limited Remand Order, ordering
21 this Court to consider Kim’s claim that default judgment was properly entered under the 22 Convention.
23
24 1 ISSUE 2 1. Whether default judgment was properly entered under the Convention.
PRINCIPLES OF LAW
4 a. EffectuatinR service through the Convention.
5 Guam Rule of Civil Procedure 4(f) states the following, in relevant part:
6 Unless otherwise provided by federal or Guam law, service upon an individual from whom a waiver has not been obtained and filed. may be effected in a place not . .
within Guam or any other jurisdiction of the United States, its territories, 8 commonwealths, or possessions:
9 (1) by any internationally agreed means reasonably calculated to give notice, 10 such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.
11 Article 10 of the Convention provides the following: “Provided the State of destination does 12
13 not object, the present Convention shall not interfere with the freedom to send judicial documents,
14 by postal channels, directly to persons abroad.” Hague Service Convention, Nov. 15, 1965, 20
15 U.S.T. 361, 658 U.N.T.S. 163, Art. 10(a) (hereinafter cited as “Hague Convention”). South Korea
16 objects to Article 10 of the Convention which allows for service by mail. See Rep. of Korea 17 Declarations and Reservations, https://www.hcch.net/en/instruments/conventions/status-table 18 /notifications/?csid=408&d;sp=resdn (last visited June 12, 2019).
19 When service by mail is not available, the Convention provides that service may be 20 effectuated through a two-step process. First, the party attempting service must request service from 21 the foreign state’s “Central Authority,” an entity designated by the foreign state that is responsible 22
23 for effecting service in that state. Hague Convention, Art. 3. Second, the Central Authority must
24 effect service in the foreign state “by a method prescribed by [that state’s] internal law.” Id. Art.
25 5(a)—(b). The Convention does not itself describe the standard for determining legal sufficiency of 1 delivery of service of process; thus, internal law of the forum state controls. Volkswagenwerk
2 Aktiengesellschaft v. Schiunk, 486 U.S. 694, 108 (198$).
b. Default judRment tinder the Convention.
4 The Convention limits the circumstances in which a default judgment may be entered 5 against a defendant who had to be served abroad and did not appear; those provisions also provide 6 some means for relief from such a judgment. Hague Convention, Art. 15, 16; see also
Volkswagenwerk, 486 U.S. 694.
8
9 Article 15 of the Convention contains two methods by which default judgment may be
10 entered. The first method provides that, in the situation where a summons must be transmitted
11 abroad under the Convention, and the defendant has not appeared, default judgment shall not be 12 given until it is established that either: (1) the document was served by a method prescribed by the 13 internal law of the State addressed for the service of documents in domestic actions upon persons 14 who are within its territory; or (2) the document was actually delivered to the defendant or to his 15 residence by another method provided for by the Convention. Hague Convention, Art. 15. further, a 16 court shall not render default judgment unless service or the delivery was effected in sufficient time 17 to enable the defendant to defend. Id.
19 The second part of Article 15 provides that ajudge may give judgment even if no certificate
20 of service or delivery has been received, if all of the following conditions are fulfilled: (1) the
21 document was transmitted by one of the methods provided for in the Convention; (2) a period of 22 . . . .
time of not less than six months, considered adequate by the judge in the particular case, has elapsed 23 since the date of the transmission of the document; and (3) no certificate of any kind has been 24 received, even though every reasonable effort has been made to obtain it through the competent 25 authorities of the State addressed. Id.
1 ANALYSIS 2 a. Pta intiff adhe red to the requirements for service of process under the Ha,ue Convention.
3 Cha argues that the default judgment is void as a matter of law because Kim failed to satisfy
the requirements of the Convention in effectuating service of process on Cha. Defendant’s Brief at 2
6 (May 20, 2019). The Court disagrees.
7 Because South Korea has objected to Article 10 of the Convention which allows for service
8 by mail, Kim could only satisfy the requirements of the Convention by attempting service through
the Korean Central Authorities. Kim states that he initiated the first of two service attempts through 10 the Korean Central Authority on October 14, 2016. Plaintiffs Brief at 2 (May 20, 2019). Kim 11 further states that on January 17, 2017, he received notification of non-service after several attempts 12 from the Central Authority. Id. Kim claims that he then initiated a second attempt for service with
the Central Authority on February 3, 2017, and this was also unsuccessful. Id.
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15 Kim has provided the Court with several documents to support his assertion that he
16 attempted to effectuate service via the Korean Central Authority. The documents have been
17 translated by Court Registered Interpreter/Translator Haewon Aevermann. Deci. of Somerfieck
18 (May 20, 2019). The documents are attached to the Declaration of Attorney Daniel Somerfieck, but 19 have not been numbered. The documents, in chronological order, are as follows:
20 1. An undated document which gives information about the attempted mail delivery of an 21 unspecified mailing. The document lists the sender as the Seoul Family Court and the 22 recipient as Cha. The document states that the mailing was received by the Seoul Family 23
24 Court Administrative Court Office at November 29, 2016. The document traces the process
25 by which the mailing was delivered to Cha, including two delivery attempts which were
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1 unsuccessful due to the recipient’s door being closed. The last entry in the delivery log is
2 from December 6, 2016, and states, “Delivered (Returned).”
2. Post-Paid Mail Receipt which lists three separate charges. The sender is listed as the Seoul 4 Family Court and the date received is listed as November 29, 2016.
5 3. An undated document titled Mail Service Notice, which states that the “date of mailing” was 6 November 29, 2016. The document lists the “documents to be served” as “Judicial 7 Cooperation (Official documents and Attached documents).” The document further lists the 8 sender as “Soo, Yeon, Kim, Mater of Seoul Family Court.” The recipient listed is Cha.
10 4. Certificate from the Seoul Family Court, dated December 21, 2016, which states that “the
11 document has not been served, by reason of the following facts: Unavailability of recipient.” 12 The Certificate states that “[tihe undersigned authority has the honour to certify, in 13 conformity with article 6 of the Convention.”
14 5. An undated document titled Mail Service Notice, which states that the “date of mailing” was 15 March 14, 2017. The document lists the “documents to be served” as “Judicial Cooperation 16 (Official documents and Attached documents).” The document further lists the sender as 17
18 “Soo Ok Park (Court Clerk), Mater of Seoul Family Court” and the recipient as Cha.
19 6. A document titled Notification of the Reason for Service (“the Notification”), dated April
20 15, 2017, which states that attempts to serve Cha were made on March 10,2017, and March
21 15, 2017, but no one responded at the residence. The Notification further states that service 22 was again attempted on April 15, 2017, and the following reason is provided for non-
23 delivery on that date:
24 “Manager at the address (Guk Chul, Jeong, male in the late 60s) said the 25 recipient lived in the address. So I visited the address. But, the current resident (female, in late 30s) said the recipient did not reside at the address
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1 while closing the door. I asked again, but she said she did not know. So, it was impossible to serve the document.”
2 7. Written Answer from the Seoul Family Court, dated May 2, 2017, which states that “[t]he
4 delivery documents entrusted to this court were not delivered due to non-delivery of the
attached certificates.”
6 8. Certificate from the Seoul Family Court, dated May 2, 2017, which states that “the
document has not been served, by reason of the following facts: Unknown recipient.”
$ None of the documentation provided by Kim constitutes definitive evidence that the 9 necessary documents were transmitted to an entity which is designated as the Korean Central 10 Authority. The documents provided by Kim also fail to confirm his allegations regarding the 11 specific dates upon which he initiated his service attempts with the Central Authority.
12
13 Notwithstanding these failures, the Court finds that the documentation provides sufficient evidence
14 to demonstrate that Kim satisfied the Convention’s requirements for service of a party living in
15 South Korea. The documentation demonstrates that the Seoul family Court made several attempts
16 to serve Cha, but were unable to do so. The Written Answer, dated May 2, 2017, was sent from the 17 Seoul Family Court and addressed to “International Affair Officer, the Office of the Court 18 Administration.” Further, the Certificate of non-service from the Seoul family Court, dated 19 December 21, 2016, states that the Seoul Family Court “has the honour to certify, in conformity 20 with article 6 of the Convention.”
21 Based on the documents provided, the Court infers that Kim initiated an attempt of service 22
23 with the Korean Central Authority, who then forwarded the request to the Seoul Family Court in
24 order to effectuate service through means provided by South Korean law. This is proper pursuant to
25 Article 5 of the Convention, which states that “[t]he Central Authority of the State addressed shall
26 itself serve the document or shall arrange to have it served by an appropriate agency.” The Seoul
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1 Family Court was then unable to effectuate service, and therefore provided Kim with a Certificate
2 of non-service as required by Article 6 of the Convention. (“If the document has not been served,
the certificate shall set out the reasons which have prevented service.”)
4 b. Default judgment was appropriate under the Convention.
5 Article 15 of the Convention contains two methods by which default judgment may be 6 entered. The first of these methods requires that either (1) the receiving party be served by a method
prescribed by the internal law of the recipient’s state, or (2) the document was actually delivered to 8 the defendant by another method provided for by the Convention. Because the Seoul Family Court
10 has provided Kim with a Certificate which explicitly states that Cha was not served, the first prong
11 of this method has not been met. Further, while it is undisputed that the summons was actually 12 delivered to Cha, the record does not demonstrate that such deliverance was made pursuant to any 13 method provided for by the Convention. For these reasons, the Court finds that the first method of 14 finding default judgment under Article 15 is inapplicable.
15 The second method for finding defauft judgment pursuant to Article 15 applies in instances 16 where there is no certificate of service. In such instances the Convention provides that the Court 17
18 can enter default judgment if the following conditions are met: (1) the document was transmitted by
19 one of the methods provided for in this Convention, (2) a period of time of not less than six months,
20 considered adequate by the judge in the particular case, has elapsed since the date of the
21 transmission of the document, and (3) no certificate of any kind has been received, even though 22 every reasonable effort has been made to obtain it through the competent authorities of the State 23 addressed. Hague Convention, Article 15.
24 In this case, it is evident that the first two conditions have been met. As previously stated, 25 the Court has found that the Summons was transmitted to the South Korean Central Authority as 1 provided by the Convention, and such transmission occurred over six months prior to the entry of
2 default. As for the third condition, the Court finds that the two certificates of non-service provided
by the Seoul Family Court suffice to meet the condition that “no certificate of any kind has been 4 received.” Neither Article 15 nor Article 16 explicitly provide for default judgment in the case 5 where a Central Authority returns a certificate of non-service, but the Court finds that it would be 6 unreasonable to find that the Convention allows for default judgment in instances where a Central
Authority ignores a request, but not in instances where a Central Authority is unable to effectuate $ service. for this reason, the Court finds that default judgment is proper under the Convention in a
10 case such as this, where Kim has complied with the Convention and nonetheless been unable to
11 effectuate service. 12 CONCLUSION AND ORDER
13 For the reasons set forth above, the Court finds that default judgment was properly entered 14 under the Convention.
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17 SO ORDED, this / day of_______________ 2019.
VIA COURT BOX HONORABLE MICHAEL J. BORDALLO 23 ataccpyafthO Judge, Superior Court of Guam -w vas piaced in the
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