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5 IN THE SUPERIOR COURT OF GUAM 6
7 ) Domestic Case No. DM0361-01 DARIUS ABDUL RICHARDSON, )
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Plaintiff. )
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) DECISION AND ORDER: Defendant's 10 ) Motion for Stay RE:
vs. ) 1) June 11,2013 Bench Order 11 ) 2) February 6, 2014 Order ) 3) May 20,2014 Order Re: Arrears 12 ) and Offset JEAN LORRAINE RICHARDSON, et al. )
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Defendants. )
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15 INTRODUCTION 16 This matter came before the Honorable Katherine A. Maraman on Defendant Jean 17 Richardson's Motion for Stay with regard to the Court's June 11, 2013 Bench Order, February 18
19 6, 2014 Order, and May 20, 2014 Order Re: Arrears and Offset. Attorney Daniel J. Berman
20 represented Plaintiff Darius Richardson. Defendant appeared pro se. Upon review of the 21 evidence, written arguments, and legal authorities presented by both parties, the Court hereby 22 issues this Decision and Order GRANTING in part, upon condition of a supersedeas bond, and 23 DENYING in part the Defendant's motion.
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25 BACKGROUND
26 This case involves an ongoing dispute between Plaintiff and Defendant stemming fro 27 their 2001 divorce. In the interest of brevity, the Court will recount only those facts pertinent t 28 Richardson v. Richardson(DM0361·01) Decision and Order
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the Defendant's present motion. On June 11, 2013, This Court issued a bench order for the offse 1
2 of $2,400.00 of Plaintiff's payment of private school tuition against child support owed in Jul
3 2013. Following denial of her request for reconsideration, Defendant did not appeal the order. 4 Thereafter, following several disputes as to the date on which child support payments must b 5 sent to Defendant, the Court issued a Decision and Order on February 6, 2014 stating tha 6
7 payment was considered timely so long as it was mailed by the first of each month. Defendan
8 declined to appeal this decision. On May 20 2014, the Court entered a Decision and Orde 9 regarding child support arrears and overpayment. The Court determined, after deducting spousa 10 support arrears, that Plaintiff had overpaid his support obligations by $72,097.73. Accordingly 11 the Court concluded that Plaintiff may offset the remaining balance against future child suppo 12
13 payments owed.
14 Pursuant to this Order, Plaintiff notified Defendant of his intent to offset future payment 15 and ceased support payments beginning in June, 2014. On June 18, 2014, Defendant filed 16 Notice of Appeal challenging the Courts May 20th Decision and Order in the Supreme Court o 17 Guam. Jean subsequently moved for a Stay Pending Appeal with regard to the May 20 Order, a 18
19 well as the Court's June II, 2013 Bench Order and February 6, 2014 Order, Plaintiff oppose
20 Defendant's motion, claiming that Defendant had not satisfied the four-part analysis justifYing 21 stay and asserting that a supersedeas bond in the full judgment amount plus additional costs wa 22 warranted. Further, Plaintiff claimed that Defendant was not entitled to stay orders which had no 23 been appealed and asked the Court to limit any stay to future child support offsets from the Ma 24
25 20th order.
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28 Richardson v. Richardson (DM0361-01) Decision and Order
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2 DISCUSSION
3 Stay of Judgment Pending Appeal 4
5 Guam law allows for a party to seek injunction or stay on the execution of judgmen
6 while an appeal is pending. See Guam R.Civ.P. Rule 62; Guam R. App. P. Rule 12 (a). Thus, th 7 Court addresses as an initial matter whether a traditional stay is appropriate without the postin 8 of a bond. A stay without a bond is generally proper where the party seeking stay c 9
demonstrate: (1) likelihood that the party will prevail on the merits of the appeal; (2) likelihoo 10
11 that the party will be irreparably harmed absent a stay; (3) a low prospect that others will
12 harmed if the court grants the stay; and (4) the public interest in granting a stay. Nken v. Holder 13 556 U.S. 418,426, 129 S. Ct. 1749, 1756 (2009); McCammon v. United States, 588 F. Supp. 2 14 43, 47 (D.D.C. 2008) (citations omitted). "[G]ranting a stay pending appeal is 'always 15
16 extraordinary remedy,' and that the moving party carries a heavy burden to demonstrate that th
17 stay is warranted." United States v. Philip Morris USA, Inc., 449 F.Supp.2d 988, 99 18 (D.D.C.2006) (internal citations omitted). 19
20 In this case, Defendant has not sufficiently satisfied her burden regarding the factor 21 required to justify a stay absent a bond. Even assuming, arguendo, that Defendant has present 22 a colorable claim upon which success on the merits may be granted, she has altogether failed t 23 articulate how the hann of offsetting payments is irreparable. While ensuring sufficient fund 24
25 exist for support of the children is indeed a priority, this Court has already determined tha
26 Plaintiff has paid Defendant an excess of $72,097.73 towards their support. See Decision an 27 Order RE: Arrears and Offset, DM0361-01 (May 20, 2014). In addition, the offset order remain 28 Richardson v. Richardson (DM0361-0 I) Decision and Order
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effective only until such time as the overpayment is satisfied, ensuring that no deficiencies wil 1
2 result with regard to finances needed for care and support. !d. Thus, Defendant fails the secon
3 prong of the stay inquiry. Additionally, Defendant has failed to convince the Court that such 4 remedy will not harm the interests of Plaintiff. Indeed, because the order of the Court grant 5 reimbursement of money owed to Plaintiff through offset of future obligations, delay would b 6 especially detrimental to his interest, as he would have no means of recovery after the childre 7
8 reach the age of majority.' Id. Finally, Defendant fails to persuade the Court that public intere
9 weighs definitively in favor of a stay. While Guam indeed recognizes an important public polic 10 in favor of supporting children, statutory requirements mandate that this interest is balance 11 against the strong public policy in ensuring equitable division and shared support betwee 12
13 parents. 5 G.C.A § 34105 (a). Thus, Defendant is unsuccessful under the traditional sta
14 analysis. 15 However, Defendant's failure to meet the general factors warranting a stay does no 16
17 conclude the Court's inquiry. Unlike the requirements of a traditional stay, settled Ia
18 establishes that an appellant is entitled to a requested stay pending appeal as a matter of right s 19 long as a supersedeas bond is posted. American Manufacturers Mutual Insurance Co. v.
20 American Broadcasting-Paramount Theatres, Inc., 87 S.Ct. 1, 17 L.Ed.2d 37 (1966); Hebert v.
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22 Exxon Corp., 953 F.2d 936, 938 (5th Cir.1992); In re Federal Facilities Realty Trust, 227 F.2
23 651, 655 (7th Cir. 1955); lvor B. Clark Co. v. Hogan, 296 F. Supp. 407, 409 (S.D.N.Y. 1969) 24 Indeed, a stay pending appeal becomes effective automatically as soon as the supersedeas bon 25 is approved by the Court. G.R.C.P Rule 62 (d); Wilmer v. Bd. ofCnty. Comm'rs of Leavenwort 26 Cnty., Kan., 844 F. Supp. 1414, 1417 (D. Kan. 1993). Thus, a stay pending appeal may b 27 1 Defendant has consistently submitted evidence that she is not employed and 28 has no income.
Richardson v. Richardson (DM0361~01) Decision and Order
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granted regardless of the factors discussed above on the condition that Defendant posts a bond 1
2 Id. 3 Supersedeas Bond Amount
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5 Under the Guam Rules of Civil Procedure, an appellant may submit a supersedeas bon 6 in order to obtain a stay when an appeal is taken. G.R.C.P Rule 62 (d). The bond may be given a 7
8 or after the time of filing the notice of appeal or of procuring the order allowing the appeal, a
9 the case may be. Id. The purpose of the bond is to "[secure] the judgment against the insolvenc 10 of the judgment debtor." Strong v. Laubach, 443 F.3d 1297, 1299 (lOth Cir. 2006) (citation 11 omitted); Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1505 (9th Cir. 1987). It serves as 12 mechanism to "preserve the status quo during the pendency of an appeal." Schreiber v. Kellogg 13
14 839 F. Supp. 1157, 1159 (E.D. Pa. 1993). Further, a bond "protects the winning party from th
15 possibility of loss resulting from the delay in execution." Jd. (citing Federal Prescription Servic 16 v. American Pharmaceutical Asso.. 636 F.2d 755 (D.C.Cir.l980)). "[A] plaintiff who has won i 17 the trial court should not be put to the expense of defending his judgment on appeal unless th 18 defendant takes reasonable steps to assure that the judgment will be paid if it is affirmed.'
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20 Lightfoot v. Walker, 797 F.2d 505,507 (7th Cir.1986).
21 It is well settled that, as a general rule, the bond required to secure a stay pending appea 22
23 must total the full amount of the judgment plus the costs of litigating the appeal. See Olcott v.
24 Del. Flood Co., 76 F.3d 1538, 1559-60 (lOth Cir.l996); Poplar Grove Planting & Refining Co. 25 v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir.l979). In general, Courts account fo 26 these costs by ordering a bond equal to 125% of the judgment. Cotton ex rei. McClure v. City o
Eureka, Cal., 860 F. Supp. 2d 999, 1029 (N.D. Cal. 2012) (citing Am. Ass'n of Naturopathi 28 Richardson v. Richardson (DM0361-01) Decision and Order
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Physicians v. Hayhurst, 227 F.3d II 04, II 09 (9th Cir.2000)). However, a trial court maintain 1
2 discretion to accept a partial bond for less than the full amount owed under the judgment. Strong
3 443 F.3d at 1299; Schreiber, 839 F. Supp. at 1159; S.E.C. v. O'Hagan, 901 F. Supp. 1476, 148 4 (D. Minn. 1995).
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6 In this case, the unique circumstances of the judgment amount warrant a departure fro 7 the usual 125% amount. Because the judgment is offset in monthly installments and has not ye 8 been stayed, the total amount Plaintiff is overpaid has decreased since the motion was made 9 Thus, the total judgment amount of $72,097.73 must subtract the offset amount of five monthl 10
11 obligations, totaling $20,650. Accordingly, the total judgment owed now is $51,417.73. Finally
12 because a bond will be fixed at the time of the Order while the amount of judgment will continu 13 to be offset until the stay is actually applied, the Court declines to multiply the current judgmen 14 by 1.25 for additional costs. Thus the total amount owed as partial supersedeas bond in this cas 15
16 is $51,417.73. The Court finds that this amount adequately protects the interest of Plaintiff an
17 demonstrates that Defendant's appeal is brought in good faith, rather than for purpose of delay.
18 Myers v. Mid-W Nat'! Life Ins. Co., 2009 WL 306366 (D. Colo. Feb. 6, 2009) (supersedeas bon 19 is intended to ensure good faith and provide "check against frivolous or merit-less appeals.")· 20 Berberena-Garcia v. Aviles, 258 F.R.D. 42, 43 (D.P.R. 2009) (imposing partial bond for amoun 21
22 of judgment but without attorney's fees/costs).
23 Finally, the Court is unpersuaded by Defendant's argument that child support cases ar 24
25 altogether exempt from the supersedeas bond requirements. Specifically, Defendant alleges tha
26 5 G.C.A. § 34121 's instruction that court-ordered support not be stayed pending appeal inverse}
27 means that a court order suspending payment of support must not take effect pending appeal.
28 Richardson v. Richardson (DM0361-0 I) Decision and Order
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However, nothing in the text or legislative intent implies that an otherwise valid order must b 1
2 stayed pending appeal. Indeed, Guam law specifically grants the Superior Court the authority t
3 modifY support orders when appropriate and states that such orders cease to remain enforceabl 4 once they are altered or set aside by the Court. See 5 G.C.A §§ 34121; 34107 (b). Thus, G 5 statutory requirements do not entitle Defendant to a stay absent the posting of a supersede 6 bond.
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8 Defendant also asserts that a stay must be granted because Plaintiff's interest in offsettin 9 future support is void as against public policy. Many jurisdictions indeed articulate a genera 10
11 rule that a parent's overpayments may not be used to offset future support payments, since i
12 would constitute a unilateral modification of the support order and deny a child consisten 13 income. See Raczynski v. Raczynski 558 P.2d 425 (Okl. App. Ct. 1976); Brown v. Brown, 84 14 N.E.2d 610,615 (Ind.2006); Harner v. Harner, 434 N.E.2d 465 (Ill. App. Ct. 1985). However 15
16 this rule is applicable only to voluntary overpayments made to build up positive credit or thos
17 made due to a mistake of the party. Id. see also State v. Funnell, 622 N.E.2d 189, 191 (Ind. Ct
18 App.l993); Griess v. Griess, 608 N.W.2d 217, 224 (Neb. App. Ct. 2000). By contrast, man 19 jurisdictions have held that involuntary payments, including payments made pursuant to an orde 20 which is later modified or invalidated, may be credited against both arrears and futur 21
22 obligations. See e.g. Griess, 608 N.W.2d at 224-25 (finding "exception to the rule" agains
23 crediting future payments where "the payments at issue were not 'voluntary' or 'extra' payment 24 because they were in compliance with the obligation imposed by the court's [erroneous!
25 calculated] order"); In re Marriage af Tallison, 566 N.E.2d 852, 854 (Ill. App. Ct. 1991)
26 General rule disfavoring credit toward future payments not applicable to involunt 27
28 overpayments pursuant to a court order); Carpenter v. Carpenter, 891 N.E.2d 587, 600-01 (Ind Richardson v. Richardson(DM0361-01) Decision and Order
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Ct. App. 2008) ("where an overpayment is not voluntary, the amount may be credited to fut 1
2 child support payments.") (Citation omitted); Steffenson v. Olsen, 600 S.E.2d 129, 132 (S.C. Ct
3 App. 2004) (Court properly credited party for involuntary overpayment). Indeed, overpaymen
' due to compliance with an erroneously calculated order is precisely what occurred in the presen 5 case. Thus, Plaintiff has a cognizable interest in benefits derived from this Court's previou 6
7 orders and is entitled to a bond to prevent loss of that interest during the pendency of appeal. Th
8 bond requirement found in the rules of civil procedure is appropriately applied in the presen
9 case. 10
11 Decisions and Orders Not Appealed
12 As mentioned supra, Defendant has appealed only the Court's March 20, 2014 Decisio 13
14 and Order regarding the offset of arrears. However, Defendant's motion also seeks a stay
15 pending the outcome of her appeal, with regard to the Court's June 11,2013 Bench Order an 16 February 6, 2014 Order. The Court is not authorized to prescribe such a remedy. As an initia 17 matter, Defendant cannot possibly satisfy the four-factor consideration warranting a traditiona 18 stay, since issues not on appeal by definition have no likelihood of success on the merits o 19
20 appeal. Further, any hann suffered by failure to stay the orders not appealed cannot be remedied
21 as those issues will not be evaluated by the Supreme Court. People v. Lujan, 1998 Guam 28 ~ 13 22 (holding that a Notice of Appeal defines the parameters of the appellate court's subject matte 23 jurisdiction). As such, a traditional stay absent bond is not justified for orders which have no 24
25 been appealed. Additionally, the right to a stay accompanying submission of a supersedeas bon
26 is available only as to those judgments actually appealed. See Iowa Beef Processors, Inc. v. 27 Bagley, 601 F.2d 949, 955 (8th Cir.1979) (holding Rule 62 did "not apply" because "no appea 28 Richardson v. Richardson (DM0361-0l) Decision and Order
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lies from the district court's order"); Goss Int'l Corp. v. Tokyo Kikai Seisakusho, Ltd!., 435 F 1
2 Supp. 2d 932, 935 (N.D. Iowa 2006) ("where no appeal from a judgment lies, there is n
3 provision in the Federal Rules of Civil Procedure for a stay."); United States v. One 1962 For 4 Ga/axie Sedan, 41 F.R.D. 156, 158 (S.D.N.Y. 1966) (a stay may not be issued for judgment 5 which have not been timely appealed). Accordingly, Defendant has no entitlement to a stay o 6 orders not appealed regardless of whether a bond is posted.
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8 CONCLUSION
9 Based on the foregoing reasons, the Court finds that Defendant is entitled to a Stay 10
11 Pending Appeal on the condition that Defendant posts a partial supersedeas bond of$51,417.73.
12 Upon receipt of the bond, Defendant's Motion for Stay of the May 20, 2014 Decision and Order 13 is considered GRANTED and the stay will take effect. As to the orders which are not being 14 appealed, Defendant's Motion for Stay is DENIED.
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17 SO ORDERED this 13th day of October, 2014. 18
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21 ~~;;f.tpz~ 22 -~~ORABLEKATHEruNEA.MARAMAN Judge, Superior Court of Guam 23
24 SERVICE VIA COURT BOX
25 I acknowledge that a copy of the original hereto was placed In the 'lL21"'~~- ·; -r.
26 '=fj"ffll'l~v-~.
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28 Richardson v. Richardson (DM0361-0 I) Decision and Order