Ryan v. Demchonko
Opinion
OF G� �f ! ' , M
I 7011JUL28 PM12:42
2
3
4
5 IN THE SUPERIOR COURT O F GUAM 6
7 ROBERT PATTON RYAN,
Plaintiff, DOMESTIC CASE NO. DM 0160-14 9 V.
10 DECISION AND ORDER
11 MYROSLAVA OLEKSANDRIVNA DEMCHENKO, 12 Defendant.
13
14
15 INTRODUCTION
16
17 This matter came before the Honorable Arthur R. Barcinas on the 18th day of July, 2014,
18 for hearing on the Plaintiff' s Motion for Order for Publication for Summons. Attorney Ladd A. 19 Bauman represented the Plaintiff, and the Defendant has not yet been served nor made an 20 appearance. For the reasons set forth below, the Plaintiff' s Motion for Order for Publication of 21
Summons is GRANTED.
22
23 BACKGROUND
24 The Plaintiff Robert Patton Ryan filed a Verified Complaint for Divorce on March 18, 25 2014. The same day he also filed a Motion for Order for Publication of Summons. This motion 26 was denied on March 31, and an errata order was later issued by the Court on April 2. On May 27
28 14, the Plaintiff filed a new Order for Publication of Summons and CVR 7.1 Form 1. A hearing
Decision and Order DMO160-14; Ryan v. Demchenko
was scheduled for June 27, but was continued to July 18. On July 8, the Plaintiff filed an 1
Amended Declaration in support of the motion.
3 DISCUSSION 4 The Plaintiff is a resident of Guam. Pl.'s Compl. 2. In his complaint, the Plaintiff pleads 5 for dissolution of marriage on the basis of irreconcilable differences, and for division of 6
7 community property and debt. Pl.'s Compl. 2-3. However, the Plaintiff has subsequently only
8 sought dissolution of marital status. See Proposed Order for Publication of Summons, May 14, 9 2014. The Superior Court has original jurisdiction over divorce actions filed in Guam. 7 GCA § 10 3105 (2005). Its jurisdiction may be exercised over non-resident defendants to any extent not 11 prohibited by the Organic Act of Guam or the Constitution of the United States. 7 GCA § 14109 12
13 (2005). A divorce may be granted if one of the parties has been a resident of Guam for at least
14 ninety days immediately preceding the filing of the complaint. 19 GCA § 8318 (2005). Even if 15 the Superior Court lacks personal jurisdiction over the defendant, it may exercise jurisdiction 16 over the res of marital status, so long as it has personal jurisdiction over the plaintiff and thus 17 the plaintiff's marital status. See Speicher v. Speicher, 2013 Guam 1 I ¶¶ 9, 16-17, 24. This is 18
19 due to the doctrine of divisible divorce, wherein a jurisdiction's court may not act as a forum for
20 litigation over property interests located outside of that jurisdiction without personal jurisdiction 21 over the defendant, but the court's adjudications of marital status are still due full faith and 22 credit. Id. at 16. As the Plaintiff now only seeks dissolution of marital status, an analysis of 23 whether the Defendant has the minimum contacts requisite for the Superior Court of Guam to 24
25 exercise personal jurisdiction over her is not necessary. See PCI Commc'ns, Inc. v. GST
26 Pacwest Telecom Haw., Inc. , 1999 Guam 17 ¶ 17 (citing Int'l Shoe Co. v. Washington , 66 S.Ct. 27 154, 158 (1945)).
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Decision and Order DM0160-14; Ryan v. Demchenko
Summons is governed by Rule 4 of the Guam Rules of Civil Procedure. GRCP 4. While
2 service abroad is effectuated under the provisions of Rule 4(f), service in Guam or other
3 jurisdictions of the United States may be effected in any manner prescribed and authorized by
any law of Guam. GRCP 4(e), (f). The Guam statute governing summons by publication, 7
GCA § 14106, reads, in relevant part, as follows:
7 (a) Where the person on whom service is to be made has departed from Guam, and cannot, after due diligence, be found in Guam, or conceals himself to avoid 8 the service of summons ... and the fact appears by affidavit to the satisfaction of 9 the court, or a judge thereof, and it also appears by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in 10 respect to whom the service is to be made ... such court or judge may make an 11 order that the service be made by the publication of the summons and by mailing the complaint and summons.
12
13 7 GCA § 14106 (2005).
14 The Plaintiff's first motion for summons by publication was denied on March 31, on 15 grounds that the Verified Complaint declared that the Defendant , Myroslava Oleksandrivna 16 Demchenko , was a resident of Ukraine whose last known address was in Ukraine. The Court 17
18 ruled that the Defendant must be served process in accordance with the procedures prescribed
19 by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in
20 Civil and Commercial Matters, because she was a resident of a foreign country that was party to 21 the Hague Convention, with a known address in that foreign country. Decision and Order 20, 22 Mar. 31 , 2014. The Court also ruled that the Plaintiff did not meet the requirements of § 14106, 23
24 having not met the due diligence obligation to provide personal service to the Defendant before
25 seeking substituted service. See Decision and Order 15-19, Mar. 31, 2014. The Court contrasted 26 the facts, as it then understood them, with different circumstances:
27 In accordance with the language of the statute, service by publication and mailing 28 under 7 GCA § 14106 is only available as an option of last resort, when a
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Decision and Order DM0160-14; Ryan v. Demchenko
defendant has fled Guam or is hiding somewhere to avoid service, and the 1 plaintiff has exercised due diligence, but has been unable to locate and personally 2 serve the defendant due to the defendant's evasion. 3 Id.
4 However, the Plaintiff's amended declaration, and the hearing on July 18, have brought 5
6 new information to the Court's attention. The declaration states that the Defendant is actually a
7 legal permanent resident of the United States, who came to the United States after declaring, to 8 the United States Consul, her intent to marry the plaintiff and reside on Guam with her minor 9 son. Pl.'s Amend. Decl. 2, Jul. 7, 2014. Upon moving to Guam and marrying the Plaintiff, she 10 filled out an 1-485 petition, and in so doing again declared her residence to be Guam. Id.
11
12 In March, 2014, upon learning of the Plaintiff's intention to file for divorce, the
13 Defendant left Guam with her son, and ceased communication with the Plaintiff. R. Log, Jul. 14 18, 2014. However, she later returned to Guam in June and filed for a re-entry permit for her 15 son, to preserve his United States permanent residence, on June 16. Pl.'s Amend. Decl. 2, Jul.7, 16
2014. The Plaintiff learned this because the Defendant broke her previous silence and called 17
18 him. R. Log, Jul. 18, 2014. She then left Guam again, having been informed of the divorce
19 action. Pl.'s Amend. Decl. 2, Jul.7, 2014. 20 The new information provided to the Court changes the proper application of the law.
21 The Defendant's status as a legal permanent resident of the United States, who has repeatedly 22
23 declared an intention to reside permanently in the United States and even during the pendency
24 of this action has returned to Guam, taking action to preserve her son's United States legal 25 permanent residency, convinces the Court that application of Guam Rule of Civil Procedure 26 4(e) is appropriate, rather than 4(f). Thus, service may be accomplished in any manner 27 prescribed or authorized by any law of Guam. GRCP 4(e). The relevant law is 7 GCA § 14106, 28
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Decision and Order DM0160-14; Ryan v. Demchenko
Guam' s statute governing summons by publication. 7 GCA § 14106 (2005). The Plaintiff has 1
2 now informed the Court that the Defendant departed from Guam upon learning of her husband's
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