IN THE SUPERIOR COURT O F GUAM
HARRY RAY SPEICHER,
Plaintiff, DOMESTIC CASE NO. DM 0360-12
V. DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS VICTORIA LIN SPEICHER,
Defendant.
INT ROD UCT ION
This matter came before the Honorable Arthur R. Barcinas on a Judgment issued by the
Supreme Court the 3rd day of July, 2014, and associated Mandate issued on the 25th day of July,
2014, vacating and remanding the prior Order of Dismissal. Attorney Ronald P. Moroni is the
attorney of record for the Plaintiff, and Attorney Seaton M. Woodley, III, is the attorney of
record for the Defendant. For the reasons set forth below, the Defendant's Motion to Dismiss is
GRANTED.
FACTUAL AND PROCEDURAL HISTORY
On February 27, 2012, Victoria Lin Speicher, the Defendant in this action, filed a
Complaint for Divorce in the Family Court of the Third Circuit in the State of Hawaii, where
she and the Plaintiff own a home. A summons to Harry Ray Speicher was issued the same day.
Victoria claims that at the time she believed the divorce to be uncontested. Decision and Order DM0360-12; Harry Ray Speicher v. Victoria Lin Speicher
On May 24, 2012, Harry Ray Speicher filed a Complaint for Divorce in the Superior 1
2 Court of Guam, on the grounds of irreconcilable differences. Victoria was personally served the
3 Complaint, Summons, and Verification on June 12, 2012. She moved to dismiss the action on 4 August 3, 2012, arguing that the Superior Court lacked subject-matter and personal jurisdiction, 5 that she did not reside on Guam and lacked sufficient minimum contacts with Guam, that it was 6 an inconvenient forum for her to litigate in, and that her Complaint in Hawaii had been filed 7
8 first.
9 The Plaintiff filed an Opposition to the Motion to Dismiss on August 17, 2014, and 10 followed that with a Declaration on August 23, 2013. He admitted that the Defendant did not 11 have significant contacts with Guam, but maintained that he, the Plaintiff, was a resident of 12
13 Guam, and had resided in Guam since January 2011, and thus the Court could exercise
14 jurisdiction over the res of the marriage even if it lacked personal jurisdiction over the
15 Defendant. In his Declaration, the Plaintiff maintained that he had no knowledge of the 16 Defendant's filing of her own Complaint for Divorce until after the Plaintiff had filed in Guam, 17 though he admits that the Defendant sent him unfiled divorce papers for an uncontested divorce, 18
19 and that he refused to sign them.
20 On August 21, the Defendant filed a Response to the Opposition, in which she re- 21 emphasized forum non conveniens and the `first to file' rule. Attached to the Response were 22 two emails between the parties sent April 26 and 27, 2012, and the Defendant argued that the 23 emails showed that the Plaintiff had knowledge of the Hawaii divorce proceeding, 24
25 notwithstanding the lack of formal service of process.
26 The Court heard oral argument on the Motion on August 31, 2012. It ruled from the 27 bench that in the interest of justice, the court should not exercise jurisdiction over the divorce 28
Page 2 of 12 Decision and Order DM0360-12; Harry Ray Speicher v. Victoria Lin Speicher
proceedings, considering that the court in Hawaii was in a better position to do so. Following 1
2 that, on September 13, 2012, the Court signed an Order prepared by the Defendant's counsel,
3 which stated that Guam was not a convenient forum for the adjudication of the divorce, and thus 4 dismissing the plaintiff's action on the grounds of forum non conveniens. The Plaintiff filed a 5 timely appeal to the Supreme Court of Guam. 6 On July 3, 2013, the Supreme Court issued a Judgment vacating and remanding this 7
8 Court's order. In its Opinion, the Supreme Court stressed that this Court had not conducted a 9 balancing analysis of the factors weighing for or against dismissal for either of the doctrines of 10 forum non conveniens or comity. The Supreme Court also held that even though this Court 11 lacked personal jurisdiction over the Defendant and thus could not adjudicate the Defendant's 12
13 property interests on Hawaii, it could still permissibly exercise jurisdiction over the divorce
14 proceeding and grant the dissolution of marriage. On remand, the Supreme Court left it to the 15 discretion of this Court whether to exercise jurisdiction, upon weighing the factors under the 16 doctrines of forum non conveniens and comity. 17 DISCUSSION 18
19 1. Jurisdiction
20 This Court has subject-matter jurisdiction under 7 GCA § 4101, the statute establishing 21 the Superior Court of Guam, and 19 GCA § 8318(a), the residency requirement for divorces o 22 Guam. Section § 8318(a) reads: 23 A divorce or dissolution of marriage may be granted if one (1) of the parties has 24 been a resident of Guam for at least ninety (90) days immediately preceding the 25 filing of a complaint for divorce, or dissolution of marriage. For purposes of this Section, a person shall be deemed a resident if one (1) of the parties has been 26 assigned with the U.S. Military to a unit on Guam or a ship home-ported in Guam for at least ninety (90) days immediately preceding the filing of a complaint for 27 divorce or dissolution of marriage or if one (1) of the parties is physically present 28 in Guam for at least ninety (90) days immediately preceding the filing of a
Page 3 of 12 Decision and Order DM0360-12; Harry Ray Speicher v. Victoria Lin Speicher
complaint for divorce or dissolution of marriage. Physical presence by one of the 1 parties in Guam for a period of ninety (90) days prior to filing of the action for 2 divorce or dissolution of marriage shall give rise to a conclusive presumption of compliance with this Section. 3 19 GCA § 8318(a) (2005). 4
5 Mr. Speicher has declared, under penalty of perjury, that he has resided upon
6 Guam since January 2011. He also submitted supporting documentation to support his 7 declaration, including a lease agreement, business license, and driver 's license. The Court 8 finds that Mr. Speicher has been a resident of Guam for at least ninety days immediately 9
10 preceding filing of the complaint for divorce, and thus the requirement of § 8318(a) is
11 met.
12 Guam' s long-arm statute authorizes the Superior Court of Guam to exercise 13 personal jurisdiction "on any basis not inconsistent with the Organic Act or the 14 Constitution of the United States." 7 GCA § 14109 (2005). Under the Due Process Clause 15
16 of the Fourteenth Amendment to the United States Constitution, courts may only exercise
17 personal jurisdiction over the defendant if the defendant has " certain minimum contacts 18 with [the forum] such that the maintenance of the suit does not offend `traditional notions 19 of fair play and substantial justice. "' PCI Commc 'ns Inc. v. GST Pacwest Telecom Haw., 20 Inc., 1999 Guam 17 ¶ 17 (alteration in original) (quoting Int'1 Shoe Co. v. Washington, 21
22 326 U.S. 310, 316 ( 1945)). Because Guam ' s long-arm statute reaches as far as the federal
23 Constitution allows, "[ A] court analyzing personal jurisdiction under Guam' s long-arm 24 statute, simultaneously analyzes the issue of constitutional due process." Banes v. 25 Superior Court, 2012 Guam 11 ¶ 17. 26 Analyzing minimum contacts under International Shoe Co. requires a factual 27
28 basis, and thus some limited discovery may be appropriate. The Court did not previously
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conduct discovery or make a formal finding determining whether Mrs. Speicher had or 1
2 lacked the minimum contacts with Guam necessary to allow the Court to exercise
3 personal jurisdiction over her. However, this question has been resolved by the Supreme 4 Court on Mr. Speicher's appeal: "Victoria [Speicher] clearly has no contacts with the 5 forum as she has never resided, worked in, or visited Guam; therefore, the trial court did 6 not have personal jurisdiction over her." As this is now law of the case, the question is 7
8 foreclosed to this Court, to wit: "A court is generally precluded from reconsidering an
9 issue that has already been decided by the same court, or a higher court in the identical 10 case." People v. Hualde, 1999 Guam 3 ¶ 13 (citation omitted). 11 Yet even though this Court lacks personal jurisdiction over Victoria Speicher, it is 12
13 not foreclosed from adjudicating the dissolution aspect of Mr. Speicher's Complaint for
14 Divorce. "Divisible divorce is based on the principle under which `financial
15 responsibility and marital status may be separately litigated at different times and in 16 different forums."' Speicher v. Speicher, 2013 Guam 11 ¶ 17 (quoting In re Marriage of 17 Gray, 251 Cal. Rptr. 846, 850 (Ct. App. 1988). The Full Faith and Credit Clause of the 18
19 federal Constitution requires recognition of the divorce decree notwithstanding the lack
20 of jurisdiction over the property matters of at least one of the married spouses. See id. 21 The Superior Court of Guam has jurisdiction to adjudicate the Plaintiff's Complaint for 22 Divorce despite its lack of personal jurisdiction over the Defendant, and thus its inability 23 to adjudicate the property interests of the parties. 24
25 II. Forum Non Conveniens
26 At its hearing on August 31, 2012, and as expressed in writing in its Order of Dismissal 27 of Septermber 13, 2012, the Cour t found tha t Gua m wa s not a convenient for um for the 28
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adjudication of the parties' divorce. The Supreme Court vacated and remanded due to this Court 1
2 not undertaking an analysis and balancing of the factors in favor of and against a grant of
3 dismissal on grounds of forum non conveniens or comity. See Speicher v. Speicher, 2013 Guam 4 11 ¶¶ 10-15, 21-23. "Where the court has considered all relevant public and private interest 5 factors, and where its balancing of these factors is reasonable, the decision may only be reversed 6 when there has been a clear abuse of discretion." PCI Commc'ns, Inc. v. GST Pacwest Telecom 7
8 Haw., Inc., 1999 Guam 17 ¶ 40 (citing Creative Tech., Ltd. v. Azteh Sys. Pte, Ltd, 61 F.3d 696,
9 699 (9th Cir. 1995)). Because this Court did not analyze the relevant private factors in its 10 hearing or Order of Dismissal, the Supreme Court vacated its opinion as an abuse of discretion. 11 See Speicher v. Speicher, 2013 Guam 11 ¶ 24. Furthermore, the Supreme Court quoted Walter 12
13 Fuller Aircraft Sales, Inc., v. Republic of the Philipines, thus: "The decision [regarding the grant
14 or denial of the motion to dismiss on the grounds of forum non conveniens] involves the 15 weighing of a mix of private and public interests, keeping in mind that the plaintiffs choice of 16 forum is usually to be respected." Walter Fuller Aircraft Sales, Inc., v. Republic of the 17 Philippines, 965 F.2d 1375, 1389 (5th Cir. 1992). 18
19 In PCI Commc'ns, the Supreme Court looked to the case Gulf Oil Corp. v. Gilbert,
20 where the U.S. Supreme Court listed the following private factors to consider when weighing a 21 motion to dismiss for forum non conveniens: 22 An interest to be considered, and the one likely to be most pressed, is the private 23 interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, 24 and the cost of obtaining attendance of willing, witnesses; possibility of view of 25 premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may 26 also be questions as to the enforceability of a judgment if one is obtained. The 27 court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 28 'oppress' the defendant by inflicting upon him expense or trouble not necessary to
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his own right to pursue his remedy. But unless the balance is strongly in favor of 1 the defendant, the plaintiffs choice of forum should rarely be disturbed. 2 Gulf Oil Corp. v. Gilbert, 303 U.S. 501, 508 (1947). 3 And when it discussed the public factors, the U.S. Supreme Court wrote: 4
5 Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers 6 instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the 7 litigation... There is a local interest in having localized controversies decided at 8 home.
9 Id. at 508-9. 10 Undoubtedly, Mr. Speicher has a private interest in litigating the divorce on Guam, 11 where he now resides. But Mrs. Speicher has an opposite interest in having the case litigated on 12
13 Hawaii. Moreover, Mrs. Speicher has declared that litigation in Guam would be a great
14 financial hardship to her. Defendant's Declaration at ¶ 4. She also declared that because she has
15 the care of her elderly parents, who suffer from dementia, she is unable to travel to Guam to 16 litigate here. Defendant's Declaration at ¶ 7. Mr. Speicher, on the other hand, has not declared 17 that litigation in Hawaii would be a hardship for him, and up to April 17, 2012 appeared to 18
19 accept the prospect o f a Hawaiian court exercising jurisdiction. Defendant' s Response to
20 Opposition, Exhibit A. If either party has to travel to conduct litigation, the prospect appears to 21 burden Victoria more than it does Harry. In the terms of Gulf Oil Corp., while the Court does 22 not definitively rule that it was Harry's intent to "vex, harass, or oppress" Victoria by filing a 23 parallel suit in Guam, surely Harry's "own right to pursue his remedy" would not be eliminated 24
25 by litigation in Hawaii, especially since the only remedy this Court has jurisdiction to provide is
26 a dissolution of marriage, which may be accomplished by litigating in Hawaii as well as by 27 litigating in Guam. Moreover, any other persons who may have to be deposed or testify are on 28
Page 7 of 12 Decision and Order DM0360-12; Harry Ray Speicher v. Victoria Lin Speicher
Hawaii, where Harry and Victoria lived before their separation, and not on Guam, where Harry 1
2 moved after the separation. Any physical evidence that might need to be considered is likewise
3 located on Hawaii. The litigation would be more "easy, expeditious and inexpensive," if it took 4 place on Hawaii, and not on Guam. 5 With regard to public interest factors, the Supreme Court notes that "States have a strong 6 public policy interest in the marital status of persons domiciled in their jurisdiction." Speicher v. 7
8 Speicher, 2013 Guam 11 ¶ 19 (citations omitted). Further, "The power to prevent a final
9 dissolution should be used only when necessary to preserve the authority of the court." Id. at ¶ 10 19 (citations omitted). The Supreme Court noted that this Court has the power to dissolve the 11 Speicher marriage, even if the property and support issues are litigated in Hawaii. Id. at ¶ 19. If 12
13 this Court hears the case, and finds the statutory requirements for granting dissolution on the
14 basis of irreconcilable differences are met, it does not have the discretion to deny the
15 dissolution. 16 But the Supreme Court also wrote that this Court has discretion, not about whether or 17 not to grant a decree of dissolution if the statute's requirements are met, but about whether to 18
19 hear the case in the first place. See Id. at ¶ 23. In that light, Guam's public policy interest in the
20 status of the Speicher marriage is one point in favor of hearing the case. But Hawaii has an 21 equal public policy interest in the marital status of its resident, Victoria Speicher. A decree of 22 divorce by either a Guam court or a Hawaii court would, under the Full Faith and Credit Clause, 23 bind the other court to the result of the determination, possibly in contravention of the other 24
25 jurisdiction's public policy interest. This is not an unequivocal reason to take up jurisdiction.
26 Moreover, looking again at the Gulf Oil Corp. factors, taking jurisdiction of this case 27 would surely create "administrative difficulties" by "piling up litigation" in Guam, somewhere 28
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the litigation did not originate, rather than in Hawaii, where it did. Whether or not to grant a 1
2 dissolution decree is not a decision subject to a jury verdict, but the basic concern for efficiency
3 is also relevant to bench trials. While "there is a local interest in having localized controversies 4 decided at home," this divorce is not, at its essence, a Guam controversy. It is a Hawaii 5 controversy in which one of the parties has moved to Guam. The "local interest" where the 6 controversy arose, in this case, points to it being decided in Hawaii. 7
8 The U.S. Supreme Court has stated "unless the balance is strongly in favor of the
9 defendant, the plaintiffs choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 10 303 U.S. 501, 508 (1947). But looking at and balancing the relevant private and public interest 11 factors here, the Court finds that the balance in this case is strongly in favor of the defendant. 12
13 Thus, the Court finds that Guam is not a convenient forum for this divorce litigation, even when
14 the litigation is limited to the issue of marital status and excludes issues of property and support. 15 III. Comity 16 The Supreme Court also directs this Court to address the question of comity. Whether 17 between federal district courts or between different jurisdictions, a rule of thumb for comity, the 18
19 `first to file' rule, "normally serves the purpose of promoting efficiency well and should not be
20 disregarded lightly." Church of Scientology of Cal. v. U.S. Dept of the Army, 611 F.2d 738, 750 21 (9th Cir. 1979) (for the federal courts); see also Simmons v. Superior Court, 214 P.2d 844 (Cal. 22 Dist. Ct. App. 1950) (between two U.S. states). Though called a rule, the `first to file' rule is not 23 hard and fast, but rather is a general guideline that allows for discretion not to hear a suit, when 24
25 that exercise of discretion would provide for the most efficient resolution of disputes. The
26 Supreme Court indicates its intent by quoting Simmons, in which the court phrased the issue 27 thus: "[T]he court in which the second action is brought may in its discretion stay or suspend 28
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that suit, awaiting decision in the first one, or, influenced by a spirit of comity, may refuse to 1
2 entertain it, if the same relief can be awarded in the prior suit." Simmons at 848 (emphasis
3 added by the Supreme Court) (citation and internal quotation remarks removed). The Simmons 4 court also wrote the following: 5 The rule which forbids a later action in the same state between the same parties 6 involving the same subject matter rests upon principles of wisdom and justice, to prevent vexation, oppression and harassment, to prevent unnecessary litigation, to 7 prevent a multiplicity of suits,--in short, to prevent two actions between the same 8 parties involving the same subject matter from proceeding independently of each other. We think there is no distinction in reason or difference in principle between 9 a case where a later action between the same parties involving the same subject 10 matter is commenced in the same state and a case where a later action between the same parties involving the same subject matter is commenced in another state. 11 Id. at 850. 12
13 The Supreme Court also found fit to quote Leadford v. Leadford on the circumstances
14 when comity interests weigh against exercising jurisdiction:
15 In ma ny cases, considerations of comity and the prevention of multiple and 16 vexatious litigation will most often militate in favor of stay. However, other factors weigh in the balance, and where judicial economy, the interests of the 17 forum, and the convenience of the parties weigh in favor of allowing the action to proceed, the trial court has discretion to deny the stay. 18
19 Leadford v. Leadford, Cal. Rptr. 2d 9, 12 (Ct. App. 1992) (citation omitted).
20 The Simmons court stressed that dismissal on the basis of comity was only appropriate 21 "if the same relief can be awarded in the prior suit." Simmons at 848. It is far from this Court's 22 intention to deny Mr. Speicher access to any substantive remedy this suit may furnish him. But 23 as established above, the relief this Court may provide is limited to dissolution of his marriage. 24
25 That same relief can also be provided in Hawaii, which may also settle the questions of property
26 and spousal support. 27
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So the reason not to dismiss a lawsuit on comity grounds, that it will destroy a party's 1
2 substantive right to a remedy, is not applicable. But the prudential reasons to dismiss the suit
3 are applicable. The suit the Plaintiff has filed is precisely a "later action between the same 4 parties involving the same subject matter." Id. at 848. The suit in Guam may possibly resolve 5 the marital status question, if the merits are reached here before they are in Mrs. Speicher's 6 Hawaii suit. But even if that is the case, litigation in Hawaii will have to go forward anyway, as 7
8 only it may resolve the disputes over property and support. As a result, the Plaintiff's Guam
9 action is "unnecessary litigation" that has caused "a multiplicity of suits," Id. at 848. And as 10 argued above in the section on forum non conveniens, Guam's interest in this dispute is lesser, 11 not greater, than Hawaii's, and the convenience of the parties weighs in favor of the litigation 12 occurring in Hawaii, not in Guam. All of this is in accordance with the `first to file' general rule 13
14 Church of Scientology of Cal., however, provides an exception to the general rule. In
15 that case, the court declined to follow the first-to-file rule, on grounds that "[the court could not] 16 now say that efficiency demands that we remand to the district court below." Church of 17 Scientology of Cal. v. U S. Dept of the Army, 611 F.2d 738, 750 (9th Cir. 1979). 18
19 In the present divorce dispute between Harry and Victoria Speicher, the litigation in
20 Guam has proceeded to a successful motion to dismiss, and a successful appeal and remand. But 21 little has been filed, nor additional work done, save the initial complaint arguments for and 22 against the dispositive motion, and related documentation. In particular, no discovery nor bench 23 trial has taken place, with no depositions having been conducted in Hawaii, nor any witness 24
25 having to fly from Hawaii to Guam in order to testify. It would serve the interest in judicial
26 economy to avoid having to duplicate the expense and effort that must occur in Hawaii 27 regardless. As a result, this case is not analogous to Church of Scientology of Cal. Here, the 28
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general rule, favoring dismissal on comity grounds of a second-filed suit that duplicates the 1
2 first-filed suit, is appropriate to the Speicher divorce, and the exception is inappropriate. The
3 comity interest in an efficient inter-state judicial system, as expressed in the `first to file' rule, 4 militates in favor of the dismissal of this lawsuit. 5 CONCLUSION 6
7 For the reasons set forth above, the Defendant's Motion to Dismiss is GRANTED.
8 9
11 IT IS SO ORDERED this day of tJAR 2 1 2014 12
15 HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam 16
26 SERVICE VIA COURT BOX I acknowledge that a copy the original hereto was placed in the 27 court box of
28 5. W00%PkK-q 4 V &VL Date T' e: )V
Page 12 of 12 Deputy Clerk, Superior Court of Guam