Lee v. Sabino

Opinion

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2 2:22 or1uRT 4 5 6 7 $ IN THE SUPERIOR COURT OF GUAM 9 10 DYLAN K. LEE, DOMESTIC CASE NO.: DM028748 11 PLAINTIFF, 12 DECISION AND ORDER vs. 13 (Defendant’s Motion to Set Aside Entry ANDREA SABINO, of Default and to Expand Time) 14 15 DEFENDANT.

16 17 INTRODUCTION 1$ This matter came before the Honorable Anita A. Sukola on Andrea Sabino’s (“Defendant”) 19 Motion to Set Aside Entry of Default and to Expand Time. Attorney Gary W.f. Gumataotao 20 appeared on behalf of the Defendant. Attorney Daniel S. Somerfieck appeared on behalf of the 21 Plaintiff Dylan K. Lee (“Plaintiff’). Upon review of the written and oral arguments, and legal 22 authorities, presented by the Parties, the Defendant’s Motion to Set Aside the Entry of Default and to 23 Expand Time is hereby GRANTED. The Request to Enter Default and Entry of Default, entered on 24 the docket in this matter by the Clerk of Court on June 29, 2018, is hereby VACATED. The J5 Judgment of Custody by Default entered on August 10, 2018 is also hereby VACATED. The 6 Defendant is granted leave to file and serve pleadings responsive to the Complaint within twenty

one (21) days from the filing of this Decision and Order.

DM0287-18 Lee v. Sabino Page 1 of 7 DECISION AND ORDER (re Def’s Motion to Set Aside Entry of Default and to Expand Time) 1 BACKGROUND 2 The Complaint for Child Custody and Support was filed on May 10, 2018. The Parties were 3 previously engaged in an intimate relationship. Compi. ¶ III. One child was born to the Parties 4 named T.M.F.L (DOB: 02/07/20 16). Id. The child has lived on Guam since his birth. Id. at ¶ TV. In 5 the Complaint, the Plaintiff sought sole legal and physical custody of the Parties’ minor child. at 6 ¶ VI. The Complaint also seeks support for the child. at ¶ VII. 7 On June 29, 2018, the Plaintiff requested that the Clerk of Court enter default for the 8 Defendant’s failure to appear. Req. for Entry of Default and Entry of Default (Jun. 29, 2018). The

9 Clerk of Court entered Default on the same day. The Defendant appeared for the first time on June 10 27, 2018 and was informed of the proceedings and that a Default had been entered. The Court 11 warned the Defendant that if no counsel filed entered an appearance on her behalf within thirty (30) 12 days, then the Court would move forward with Default Judgment. No entry of appearance was 13 entered within the thirty-day time period. 14 The Court entered a Judgment of Custody by Default on August 10, 2018. The Judgment 15 awarded the Plaintiff the sole legal and physical custody he sought in the Complaint. J. Custody By 16 Default 2 (Aug. 10, 2018). The Judgment also called for child support pursuant to the Guam Child 17 Support Guidelines. J 18 The Defendant filed an Answer and Counterclaim on September 28, 2018. The Defendant 19 raises several defenses, including inter atia that the best interest of the child favors full custody to 20 the Defendant. Answer and Counterclaim 2 (Sept. 28, 2018). The Answer and Counterclaim also 21 alleges that the Defendant is fit to have custody in the best interest in of the minor. Id. at 3. 22 On October 1, 2018, the Defendant filed the instant Motion to Set Aside Entry of Default and 23 to Expand Time. The Plaintiff filed an Opposition on October 29, 2018. The Court held a hearing 24 and took the matter under advisement on November 15, 2018. 25 DISCUSSION 26 Rule 55(c) of the Guam Rules of Civil Procedure provides “[f]or good cause shown, the 27 court may set aside an entry of default. . . .“ Guam R. Civ. P. 55(c) (2014). The Supreme Court of 28

DM0287-18 Lee v. Sabino Page 2 of 7 DECISION AND ORDER (re Def’s Motion to Set Aside Entry of Default and to Expand Time) 1 Guam has held the same grounds are used to determine whether good cause exists to set aside an 2 entry of default or a default judgment. See Adams v. Duenas, 1998 Guam 15 ¶ 5. However, 3 However, “default judgments are generally disfavored and deciding a case on its merits is 4 encouraged whenever possible.” 5 The Supreme Court adopted the Ninth Circuit Court of Appeals test for whether to set aside 6 default judgments ubnder Rule 60(b). See Midsea Industrial, Inc. v. HK Engineering, Ltd., 1998 7 Guam 14 ¶ 5 (citing Falk v. Allen, 739 F.2d 461 (9th Cir. 1984)); see also, Adams, 1998 Guam 15 at 8 ¶ 5. Courts should set aside a default judgment if “(1) the defendant’s culpable conduct led to the 9 default, (2) the defendant has no meritorious defense, or (3) the plaintiff would be prejudiced if the 10 judgment is set aside.” Adams, 1998 Guam 15 at ¶ 5 (emphasis added). The three elements are 11 applied “disjunctively rather than as a balancing test.” Duenas v. Brady, 2008 Guam 27 ¶ 28. This 12 means that if one of the three elements is present, then a denial of a motion to set aside is 13 appropriate. $ Midsea Indus., 1998 Guam 14 at ¶ 6 (citing Cassidy v. Tenorio, 856 F.2d 1412, 14 14 15-16 (9th Cir. 1988)). Therefore, the Court will discuss each element separately below. 15 1. Whether the Defendant’s culpable conduct led to the entry of default. 16 Applying the culpable conduct element to a party’s failure to answer a complaint, the Ninth 17 Circuit has found a defendant’s conduct is culpable in leading to the entry of default when the 18 defendant “has received actual or constructive notice of the filing of the action and intentionally 19 failed to answer.” Alan Neuman Productions Inc. v. Aibright, 862 F.2d 1388, 1391-92 (9th Cir. 20 1988). A “[n]eglectful failure to answer as to which the defendant offers a credible, good faith 21

22 explanation negating any intention to take advantage of the opposing party, interfere with judicial

23 decision-making, or otherwise manipulate the legal process is not ‘intentional’ . . . and is therefore 24 not necessarily—although it certainly may be, once the equitable factors are considered—culpable or 25 inexcusable.” TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001), overruled on 26 other grounds by Egeihoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001). Where a failure to 27

DM0287-Is Lee v. Sabino Page 3 of 7 ,DECISION AND ORDER (re Del’s Motion to Set Aside Entry of Default and to Expand Time) 1 answer is present, the “Ninth Circuit has only found culpability based simply on the failure to 2 answer after being provided, with notice in some limited circumstances in which the moving party

was a legally sophisticated entity or individual, and has specifically cautioned against such a finding 4 when the individual was not a lawyer and was unrepresented at the time of the default.” Pacific

Renewable Energy Solutions, Inc. v. Sedna Aire (sic! Americas, LLC, No. CIVIL CASE 11-000 19, 6

7 2013 WL 1352063, at *4 (D. Guam Apr. 2, 2013) (citing U.S. v. Signed Pers. Check No. 730 of

8 Yubran S. Mesle, 615 F.3d 1085, 1093 (9th Cir. 2010)).

Here, the Defendant was not represented at the time that either the Default and the Judgment 10 of Custody by Default were entered. Thus, the Defendant is not a legally sophisticated individual 11 and was not represented by Counsel. Notwithstanding the Court’s admonishment that the Defendant 12 should retain counsel or face default, the Court is not certain the Defendant understood the import, 13 magnitude, and consequences of the Default Judgment. This matter is for custody and related 14 support of the Parties’ minor child. The Court does is unwilling to hold the Defendant culpable in 15 losing custody to her child based solely on procedure. Thus, the Court finds the culpable conduct 16 factor does not bar setting aside the Default Judgment. 17 ii. Whether the Defendant has no meritorious defense. 18 The Ninth Circuit has held, in order to “demonstrate the existence of a meritorious defense, a 19 party must offer up more than mere conclusory assertions but must present specific facts that would 20 constitute a defense if the litigation was permitted to proceed.” TCI Group, 244 F.3d at 700 (internal 21 citations omitted). The court “must determine whether there is some possibility that the outcome of 22 the suit after a full trial would be contrary to the result achieved by the default.” Midsea Indus., 1998 23 Guam 14 ¶ 10. While the burden is on the party seeking to vacate the default, the burden “is not 24 extraordinarily heavy; the only requirement is that a sufficient defense is assertible [sic] and 25 litigation of the claims would not be a wholly empty exercise.” jç Put another way, “all that is 26 necessary is to allege sufficient facts that if true, would constitute a defense; the question of whether 27 the factual allegation is true is not to be determined by the court when it decides the motion to set 28

DM0287- 18 Lee v. Sabino Page 4 of 7 DECISION AND ORDER (re Defs Motion to Set Aside Entry of Default and to Expand Time) 1 aside the default. Rather, that question would be the subject of later litigation. Pacific Renewable 2 Solutions, WL 1352063 at *45; see also, Schwab v: Bullocks, Inc., 508 F.2d 353, 374 (9th Cir. 3 1974) (reasoning the success of the defense is not the standard and rather, “[d]efendants’ allegations 4 are meritorious if they contain even a hint of a suggestion, which, if proven at trial, would constitute 5 a defense”). 6 Here, the Complaint is for custody of a minor child between two parents. In Guam, Courts 7 considering awarding custody of a minor consider the best interest of the child. See 19 G.C.A. § 8 8404 (2017); see also, Flores v. Cruz, 1998 Guam 30. Further, the Supreme Court has held that 9 while the best interest of the child controls, Guam does have a preference for joint physical and legal 10 custody. Howerton v. Howerton, 2004 Guam 8 ¶ 14. In determining a custody arrangement in the 11 best interest of the child, courts look to the statutory list of factors at 19 G.C.A. 8404(h) and other 12 factors established in case law. See e.g., Howerton, 2004 Guam 8 fi 24-26. The various factors 13 courts consider to determine the best interest of the child look at the fitness of the parties seeking 14 custody, the ability to meet the child’s emotional, physical, and other needs, and other relevant 15 considerations. 16 These principles of law demonstrate to the Court that in determining custody, because the 17 best interest factors are highly fact dependent, adjudication on the merits is more appropriate to’

18 determining custody than adjudication by default. This conclusion is buttressed by the preference in 19 Guam law for joint custody and the preference for adjudication of claims on their merits. 20 Here, the Defendant asserts that she is a fit person entitled to custody of her minor child 21 under Guam law. Importantly, there is no allegation in the Complaint or otherwise before the Court 22 that challenges the Defendant’s fitness as a parent. Instead, the Complaint alleges that the Parties 23 split custody for some time prior to the Judgment of Custody by Default. Without an allegation of

24 unfitness before the Court, the Court must find that Guam’s strong presumption for joint legal and 25 physical custody constitutes a meritorious defense under the Midsea test. If this matter progresses, 26 based on the allegations before the Court thus far, the Court finds that a joint custody arrangement is

27 likely in light of the state of Guam law. Thus, the Defendant’s proposed Answer and Counterclaim 28

DM0287-18 Lee v. Sabino PageS of 7 DECISION AND ORDER (re Def’s Motion to Set Aside Entry of Default and to Expand Time) . 1 does raise a meritorious defense for purposes of the Midsea test. Therefore, the meritorious defense 2 factor is no bar to setting aside the Default Judgment. 3 iii. Whether the Plaintiff would be prejudiced if the entry of default is set aside. 4 Finally, as to whether setting aside the default prejudices the Plaintiff, the Court notes 5 prejudice is determined when the defaulting party moves to set aside. Midsea Indus., 1998 Guam 14 6 ¶ 14 (citing Cribb v. Matlock Communications, Inc., 768 P.2d 337, 340 (Mont. 1989)). Further the 7 Plaintiff cannot simply “say that lapse of time resulted in prejudice, but instead there must be the 8 presentation of evidence to support those allegations. Midsea Indus., 1998 Guam 14 ¶ 16. Similarly,

9 the Defendant may not just “sit back and claim that the delay in time was inconsequential and 10 presume no prejudice resulted.” Id. For a delay to be prejudicial, the delay must “result in tangible 11 harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or 12 collusion . . . [b]eing forced to litigate on the merits cannot be considered prejudicial because the 13 plaintiff would have had to litigate the merits of the case had there been no default.” Pac. Renewable 14 Energy Sols., 2013 WL 1352063 at *6 (citing TCI Group, 244 F.3d at 701) (internal quotations 15 omitted). Prejudice also exists where the “non-defaulting party’s ability to pursue the claim is 16 hindered by substantial reliance on the judgment.” gflç, 739 F.2d at 463. 17 Here, the Plaintiff offered no evidence or argument supporting how he would be prejudiced if 18 the Default Judgment was set aside. The Defendant has engaged an attorney to set aside the Default, 19 and even appeared after the Default was entered and before the Judgment of Custody by Default was 20 entered. There has been no showing that the Plaintiff took any action in reliance on the Entry of

21 Default that would be affected were the Default Judgement set aside. Therefore, the Court finds the 22 prejudice to the Plaintiff element is no bar to this Court setting aside the Default Judgment. 23 CONCLUSION 24 By preponderance of the evidence and based on the foregoing reasons, the Defendant’s 25 Motion to Set Aside the Entry of Default and to Expand Time is hereby GRANTED. The Request to 26 Enter Default and Entry of Default, entered on the docket in this matter by the Clerk of Court on 27 June 29, 2018, is hereby VACATED. The Judgment of Custody by Default entered on August 10, 28

DM0287-18 Lee v. Sabino Page 6 of 7 DECISION AND ORDER (re Def’s Motion,to Set Aside Entry of Default and to Expand Time) 1 2018 is also hereby VACATED. The Defendant is granted leave to file and serve pleadings

2 responsive to the Complaint within twenty-one days from the filing of this Decision and Order.

4 A Status Hearing is set for 2/7 at 9:00a.m.

6 SO ORDERED 1 / I The Honorable Anita A. Sukola 9 Judge, Superior Court of Guam 10

23 SERVICE VIA COURT BOX 24 acknowidge that a copy ol the qinal hnrtO was placed in the 25

27 Cuputy Clark. Superior Court at Guam 2$

DM0287-18 Lee v. Sabino Page 7 of 7 DECISION AND ORDER (re Def’s Motion to Set Aside Entry of Default and to Expand Time)