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6 RICHARD S. TANTAMCO, ) DOMESTIC CASE NO. DM0018-12 7 ) Plaintiff, ) 8 DECISION AND ORDER ) 9 v. ) ) 10 ) JANICE P. TANTAMCO, ) 11 Defendant. ) 12 ----------------------------) 13 INTRODUCTION 14 This matter came before the HONORABLE ARTHUR R. BARCINAS on the 3rd day of 15 April, 2012, upon review after assignment. Attorney Catherine Bejerana Camacho represented 16
17 the Plaintiff, and the Defendant has not yet been served nor made an appearance. The Court
18 now issues the following Decision and Order on the matter. 19 DISCUSSION 20 The issue of perssmal jurisdiction arises in this case because the Plaintiff has moved for 21 an order of the Court allowing service upon the Defendant through publication and mailing by 22
23 submitting an ex parte "Application for an Order for Service by Publication," an affidavit of
24 counsel, and a proposed order for "Publication of Summons." 25 A) Failure to File a Motion in Compliance with the Local Rules of the Superior Court of 26 Guam 27
28 Decision and Order Domestic Case No. DMOO 18- J2
Pursuant to Rule 7(b)(1) of the Guam Rules of Civil Procedure, "[a]n application to the
2 court for an order shall be by motion .... " GRCP Rule 7(b)(1)(2012). CVR 7.1(b) requires
3 that motions must be made in writing, and must follow a particular form, "[e ]very motion shall 4 be presented in writing," and "the moving party must present a motion, which will contain the 5 date on which the motion will be heard, as provided for in CVR Rule 7.1 (e )(2)." 6 Pursuant to Rule 7.1(a) of the Local Rules of the Superior Court of Guam, "the 7
8 provisions of this rule shall apply to motions, applications, petitions, orders to show cause, and
9 all other proceedings except a trial on the merits and applications for a temporary restraining 10 order . . . . " CVR 7.1(a)(2012)(emphasis added). This local rule further emphasizes that II "applications" to the Court are subject to the rules governing motions. Therefore, any 12 application requesting that the Court take action must follow the format prescribed by CVR 13
14 Rule 7.1. 15 Pursuant to CVR 7.1(e)(2): 16 Counsel for the parties must file an "Agreement of Hearing Date," in a form 17 shown below in Attachment "CVR 7.1A." It shall be the responsibility of the moving party or his attorney to contact the attorney for each party who has 18 entered an appearance, or if the party(ies) are pro se, it is the moving party's 19 responsibility to contact the pro se party and propose a date for oral argument. Once the parties have agreed on a date for oral argument, the moving party shall 20 clear the date with the chambers clerk. When the date has been cleared with the clerk, that date shall be inserted in the "Agreement of Hearing Date." If the parties 21 do not agree on a date for oral argument or if a party has not entered an 22 appearance, the moving party may submit the "Agreement of Hearing Date" to the Court with a notation that the non-moving party does not agree or is not 23 available, in which event the Court shall either determine the hearing date or determine that no oral argument shall be scheduled and the motion shall proceed 24 to briefing and disposition under CVR 7. 1(e)(4), in the Court's discretion. 25 Local Rules of the Superior Court of Guam, CVR Rule 7.1 (e )(2) (2012)( emphasis added). 26 Thus, even if no other party has yet appeared in the action, the Plaintiff must still submit 27
28 a written motion accompanied by an "Agreement of Hearing Date Form."
Page 2 of18 Decision and Order Domestic Case No. DMOOJS-J2
Under CVR Rule 7.1(f), "Papers not timely filed by a party including any memoranda or
2 other papers required to be filed under this Rule shall not be considered without leave of court."
3 Under CVR 7.1 (k), "The Court need not consider motions, oppositions to motions or briefs or 4 memoranda that do not comply with this Rule," and "the failure to comply fully with this Rule 5 subjects the offender at the discretion of the Court to the sanctions of General Rule 2.1." CVR 6 7.1(k)(2012). 7
8 Under GR 2.1 :
9 The violation of or failure to conform to any of these General Rules, the Guam Rules of Civil Procedure, or the Local Rules of the Superior Court of Guam - 10 Civil Rules shall subject the offending party or counsel to such penalties, 11 including monetary sanctions and/or the imposition of costs and attorney's fees to opposing counsel, as the Court may deem appropriate under the circumstances. 12
13 Local Rules of the Superior Court of Guam GR 2.1 (2012).
14 Under CVR Rule 7.1 (k), the Court need not consider the Plaintiffs application, as it
15 does not comply with CVR 7.1. 16 Because the Court finds that any application for an order must be made by motion which 17 fully complies with the Guam Rules of Civil Procedure and the Local Rules of the Superior 18
19 Court of Guam, the Court finds that the Plaintiffs request for an order for publication and
20 mailing does not comply and may therefore, be STRICKEN. 21 B) Divorce Jurisdictional Issues 22 The Plaintiffs application is deficient in other substantial respects. Rule 4(e) of the 23 Guam Rules of Civil Procedure requires that if a person against whom an action is filed is a 24
25 resident of Guam or any other jurisdiction of the United States, they must be served either: (1)
26 under the laws of Guam; (2) "as prescribed by the law of the place where the person is served;" 27 or (3) in person, or at his residence by leaving it with a household member of suitable age, or by 28
Page 3 of18 Decision and Order Domestic Case No. DMOOlS-12 -----~.-.---.-----~-----------------
serving the person's agent. GRCP Rule 4(e)(2012). However, if the Defendant is not a resident
2 of Guam or any jurisdiction of the United States, then personal service must be made under
3 GRCP Rule 4(1), and may no longer be made "in any manner prescribed or authorized by the 4 laws of Guam," as permitted under GRCP Rule 4(e)(1), but instead must be made only in 5 conformity with GRCP Rule 4(f). Personal service under Rule 4 must be made within 180 days 6 of the filing, but may be extended by the Court for good cause. GRCP Rule 4(m)(2012). 7
8 In this case, the Order Allowing Service by Publication was unsupported and therefore,
9 invalid, on two bases: 1) the affidavit and verified complaint in this case failed to establish the 10 residency of the Defendant, whether in a jurisdiction of the United States or a foreign country, 11 and thereby allow the Court to determine whether the Defendant may be served under Guam 12
law or foreign law; and further, because residency is not plead or proved, the Court cannot 13
14 detennine the existence of the Court's jurisdiction over the Defendant; and 2) the affidavit did
15 not contain the statements required under 7 GCA § 141 06. 16 1) No Residency of the Defendant is Pled or Proved 17 The Plaintiff's declaration in support of service by publication and mailing is further 18
19 deficient under 7 GCA § 14106 for lack of allegations of the residency of the Defendant, which
20 would thereby allow the Court to determine whether a cause of action by which the Court has 21 jurisdiction over the Defendant exists. In order for the Court to properly allow service by 22 publication and mailing, it has to appear from either the verified allegations of the complaint or
the atTidavit in support of service by publication and mailing that a cause of action which may 24
25 be brought in the Superior Court of Guam exists against the Defendant. First, the affidavit of
26 the Plaintiff's counsel is silent as to whether the Plaintiff has a proper cause of action against 27
Page 4 of 18 Decision and Order Domestic Case No. DMOOIS-12
the Defendant. Next, the complaint itself fails to factually allege that a cause of action exists
2 against the Defendant over which this Court has jurisdiction.
3 GRCP Rule 8(a)(l), entitled "General Rules of Pleading," requires every complaint to 4 set forth all jurisdictional bases for the claims contained therein, stating, "(a) Claims for Relief. 5 A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross 6 claim, or third party claim, shall contain (1) a short and plain statement of the grounds upon 7
8 which the court's jurisdiction depends." GRCP Rule 8(a)(1). The complaint for divorce is
9 utterly devoid of any allegations as to the Superior Court of Guam's jurisdiction over the IO Defendant, thus failing to meet the minimum requirement of GRCP Rule 8. 11 The verified Complaint for Divorce fails to meet the minimum jurisdictional 12 requirement of 19 GCA § 8319, by failing to plead and prove the residency of the Defendant. 13
14 "Residency must be pled and proved in all divorces or other actions for dissolutions of
15 marriage." 19 GCA § 8319(a) (2012) (emphasis added). More importantly, "[i]n actions for 16 dissolution of marriage, neither the domicile nor residence of the husband shall be deemed to be 17 the domicile or residence of the wife. For the purposes of such an action, each may have a 18
19 separate domicile or residence depending upon proof of the fact and not upon legal
20 presumptions." 19 GCA § 8319(a) (emphasis added). 21 The verified Complaint for Divorce is conspicuously silent in this regard. The complaint 22 merely claims that the Court has jurisdiction over this action because the Plaintiff is a resident 23 of Guam under 19 GCA § 8318, without reference to the Defendant's residence, or the Court's 24
25 jurisdiction over her. This allegation ignores the residency pleading requirement of the very
26 next statute, 19 GCA § 8319. Defendant's residency is not plead as required under 19 GCA § 27 8319(a) and GRCP Rule 8(a)(1), and the Court cannot presume her residency in Guam, or 28
Page 5 of 18 Decision and Order Domestic Case No. DMOOJS-12
anywhere, under 19 GCA § 8319(a). Due to the declarations of the Plaintiff stating that the
2 marriage occurred in the Philippines, and that the Defendant's last known address is in the
3 Philippines, the Court cannot even be assured that the Defendant is a resident of a jurisdiction of 4 the United States, and therefore subject to service under the laws of the United States and 5 Guam. 6 Plaintiff must not only plead residency, but must also prove the Defendant's residency, 7
8 wherever situated. Even in a consented divorce action, the Plaintiff must still plead and prove
9 the residency of the Defendant: "[a]llegations and proof of residence or other compliance with 10 the requirements of § 8318 of this Chapter shall be pled and proved in any divorce or II dissolution of marriage granted upon the consent of the Defendant." 19 GCA § 12
8319(a)(emphasis added). The closest the Plaintiff comes to referencing the Defendant's 13
14 residency is in the Affidavit in Support of Order for Publication, wherein he claims that the
15 Defendant's "last known address [is] in the Philippines, as known by Plaintiff ...." Tantamco 16 v. Tantamco, Domestic Case No. DM0018-12, Aff. of Catherine Bejerana Camacho in Support 17 of Order for Publication, ~ 7 (filed February 8, 2012) (emphasis added). Plaintiff does not 18
19 indicate whether he has personal knowledge that this is the current residence of the Plaintiff, or
20 that he has any knowledge of her actual current place of residence. The Plaintiff has not proven 21 the Defendant's residency in any place, as there are no allegations regarding the Defendant's 22 residence within the complaint at all, and reference to the Defendant's "last known address"
does not constitute proof of her residency in any jurisdiction. 24
25 If the Defendant is a resident of the Philippines, then service authorized by the laws of
26 Guam, including publication and posting under 7 GCA § 14106 and GRCP Rule 4(0) are not 27
Page 6 of18 Decision and Order Domestic Case No. DMOOJS-12
applicable, as later discussed in this opinion, and service would need to be effected under GRCP
2 Rule 4(f).
3 Next, the Plaintiff's complaint also fails to plead consent. 19 GCA § 8319(b) states: 4 All consents to a divorce or dissolution of marriage must be acknowledged or 5 verified before a notary public or other officer authorized to administer oaths within the United States if signed in the United States, acknowledged or verified 6 before a consular officer of the United States or other United States official authorized to take oaths if signed outside the United States, or have a notarized 7 acknowledgement or verification by a foreign notary which is authenticated by a 8 United States consular officer.
9 19 GCA § 8319(b)(2012). 10 The Plaintiff's complaint does not contain any allegation that the Defendant has 11 consented to this divorce action. Failing any averment of consent, the Court's file is similarly 12
devoid of any verified or notarized acknowledgment of consent from the Defendant. 13
14 Finally, and perhaps most tellingly, 19 GCA § 8319(a) states that even in consent
15 divorce cases, "[t]he Superior Court of Guam is not presumed to have jurisdiction over any 16 actionfor divorce or dissolution a/marriage which may be filed in the Superior Court of Guam 17 because the Defendant consents." 19 GCA § 8319(a) (emphasis added). There is no 18
19 presumption of jurisdiction even where a defendant properly consents, and accordingly, there is
20 no presumption of jurisdiction where the defendant is not present or does not consent. The 21 Court must independently find jurisdiction in each case. On this basis, it is apparent that in 22 order for the Court to properly exercise personal jurisdiction over the Defendant and the action 23 for divorce, she must be a resident of Guam, see 19 GCA § 8319, or she must consent to the 24
25 action, see 19 GCA § § 8318(b) and 8319( a) and (b), or the Court must find that the Defendant
26 has minimum contacts with the jurisdiction, see 7 GCA §§ 14109 and 14110. 27
Page 7 of 18 Decision and Order Domestic Case No. DM0018-12
The Plaintiff's Complaint for Divorce is conspicuously silent in all regards concerning
2 the personal jurisdiction of the Superior Court of Guam over the Defendant. Even if the Court
3 disregards the Plaintiff's failure to plead and prove any residency of the Defendant, the Plaintiff 4 has omitted the filing of any declaration, affidavit, or other sworn statement containing evidence 5 proving personal jurisdiction over the Defendant. 6 Plaintiff neither pleads nor proves that the Defendant was a resident of Guam or any 7
8 other place, nor that the Defendant has consented to the divorce. The requirement of either
9 consent or proof of residency of a defendant in a divorce case initiated in Guam is not merely a 10 forn1ality, but rather, an extremely important safeguard, so that the Court may properly find II jurisdiction, and may apply the proper laws regarding service. 12 In the case of Rinehart v. Rinehart, 2000 Guam 14, the Supreme Court of Guam 13
14 expressed concerns regarding abuse of the Guam legal system by resident spouses against non-
15 resident spouses, which it found, creates an opportunity "in which on-island spouses could 16 tamper with the legal rights of off-island spouses." Id. at ~18. Validating the Supreme Court of 17 Guam's concern, and in violation of the statutory safeguards set by 19 GCA § 8319, the 18
19 Plaintiff has entirely failed to provide the Court with any admissible evidence regarding the
20 Defendant's residency or consent to this divorce action. The Plaintiff fails to even suggest that 21 the requirements of 19 GCA § 8319( a) have been met, in any document filed. 22 The Court finds that the Plaintiff has failed his burden to plead and prove the residency 23 of the Defendant, so that the Court may detern1ine the applicable law, and has failed to 24
25 demonstrate the personal jurisdiction of the Superior Court of Guam over the Defendant.
26 Based upon the proof of the facts provided to the Court, the Court declines to find it has 27 jurisdiction to hear the action, as the Defendant is most likely not a resident of Guam, and has 28
Page 8 of 18 Decision and Order Domestic Case No. DMOOJS-12
not consented to this action, unless minimum contacts exist between the Defendant and Guam,
2 by which the Court may exercise personal jurisdiction over her, as discussed later in this
3 opinion. See, e.g., Mariano v. Surla, 2010 Guam 2, at ~~ 23-29. 4 In fact, nearly all of the allegations of the complaint and the affidavit filed, which touch 5 on the subject of the Defendant's actual residence, hint that the Defendant is probably a resident 6 of the Philippines, and not a resident of a United States jurisdiction. The complaint states that 7
8 the parties were married in "Pampanga, Philippines," in 2006. Tantamco, Complaint for
9 Divorce, ~ 4 (filed January 9, 2012). The supporting affidavit then states that "Defendant's last 10 known address [is] in the Philippines, as known by Plaintiff .... " Id. at Aff. of Catherine II Bejerana Camacho in Support of Order for Publication, ~ 7 (filed February 8, 2012). If the 12
Defendant is not, or has never been a resident of Guam, and is, in fact, a resident of the 13
14 Philippines, as indicated by the allegations of the complaint and affidavit, then: 1) 7 GCA §
15 14106 is not applicable; and 2) service under GRCP Rule 4(f) would need to be effected. 16 If the Defendant is a resident of the Philippines, then actual notice must follow the 17 requirements of GRCP Rule 4(f), as no evidence that a waiver has been obtained from the 18
19 Defendant has been provided by the Plaintiff.
20 The Philippines is not a party to the Hague Convention on the Service Abroad of 21 Judicial and Extra Judicial Documents in Civil and Commercial Matters, and it is not apparent 22 that it is a party to any treaties or contracts regarding service with the United States. GRCP 23 Rule 4(f)( 1) is not applicable in such an instance. Therefore, if the hinted allegation that the 24
25 Defendant is a resident of the Philippines is true, it appears that the Plaintiff will be required to
26 comply with other subsections of Rule 4(f). There are no exceptions to these foreign service 27 requirements, and the Court may not apply Guam law to override international law. Until the 28
Page 9 of]8 Decision and Order Domestic Case No. DMOOlS-12
Plaintiff complies with 19 GCA § 8319(a) and provides the Court with the Defendant's actual
2 residency, the Court will be unable to determine whether the Defendant is subject to 7 GCA §
3 14106, and service under the laws of Guam, and will be unable to determine whether proper 4 service is effected under the proper and applicable laws, and thereby determine if it has acquired 5 personal jurisdiction over the Defendant. 6 2) Deficiency of Underlying Affidavit III Support of Order Allowing Service by 7
8 Publication
9 Even if the Defendant is a resident of a United States jurisdiction, including Guam, and 10 therefore, may be subject to any service allowed under Guam law or U.S. law under GRCP Rule 11 4( e)(1), the version of GRCP Rule 4 which is currently in effect only allows for service through 12
publication and mailing as permitted by statute or court order. GRCP Rule 4(0)(2012). 7 GC A 13
14 § 14106 is the controlling statute, and specifically allows for service by publication and mailing
15 instead of personal service under GRCP Rule 4( e)(1) or (2), only when an application is made 16 to the Court upon a verified affidavit (or declaration, see 6 GCA § 4308) swearing either that 17 the person "has departed from Guam ... or conceals himself to avoid the service of summons" 18
19 and that "a cause of action exists against the defendant." 7 GCA § 14106 (2012). It states in
20 relevant part: 21 (a) Where the person on whom service is to be made has departed from Guam, 22 and cannot, after due diligence, be found in Guam, or conceals him/'ie~f to avoid the service of summons ... and the fact appears by affidavit to the satisfaction of 23 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 24 respect to whom the service is to be made . .. such court or judge may make an 25 order that the service be made by the publication of the summons and by mailing the complaint and summons. (b) Service by mail shall be by any kind of U.S. 26 Postal Service delivery that provides for written proof of mailing, written proof of delivery and restricted delivery to the addressee only. 27
28 Title 7 GCA § 141 06 (emphases added).
Page 10 of18 Decision and Order Domestic Case No. DMOOJS-12
The Plaintiff claims that service by publication and posting under this statute is available
2 whenever "a party to an action resides outside the Territory." Tantamco v. Tantamco, Domestic
3 Case No. DMOO 18-12, Ex Parte Application for An Order for Service by Publication, 4 Memorandum of Points and Authorities, p. 2, lines 14-15 (filed February 8, 2012). lIowever, 5 this argument is patently false in light of the particular language of the statute and GRCP Rule 6 4( e). Service by publication and mailing under 7 GCA § 141 06, is only available in lieu of 7
8 personal service under GRCP Rule 4(e), and first requires an affidavit or verified complaint
9 swearing, or declaring under penalty of perjury, not only that the Defendant cannot be found in 10 Guam, but either: 1) both that the Defendant "has departed from Guam" AND "cannot ... be II found in Guam;" or 2) that the Defendant has concealed himself/herself "to avoid the service of 12 summons .... " 7 GCA § 14106. Both of these options are carefully worded to indicate to the 13
14 Court that the Defendant is attempting to avoid service, not merely that a defendant does not
IS live in Guam. 16 In fact, Rule 4( e) anticipates that parties who merely reside in other United States 17 jurisdictions may need to be served from time to time, and provides a method for such service, 18
19 stating: "service upon an individual ... may be effected ... in any other jurisdiction of the
20 United States, its territories, commonwealths, and possessions: (1) ... as prescribed by the law 21 of the place where the person is served; or (2) by delivering a copy of the summons and of the 22 complaint to the individual personally . . . . " GRCP Rule 4(e). Service by publication and 23 mailing under 7 GCA§ 14106 is only available as an option of last resort, when a defendant has 24
25 fled Guam or is hiding to avoid service.
26 Regarding the Defendant's "depart[ure]" from Guam, the Declaration of the Plaintiff 27 does not even contain a recitation of the language of the statute, and merely states that the 28
Page 11 of18 Decision and Order Domestic Case No. DMOO 18-12
Defendant cannot be found in Guam, because an "agent for service of process has been unable,
2 after exercising his best efforts and due diligence, to find and locate said Defendant within the
3 Territory of Guam." Tantamco, Aff. of Catherine Bejerana Camacho in Support of Order for 4 Publication, ~ 6 (filed February 8, 2012). No factual allegations that the Defendant has ever 5 resided in Guam and thus, has ever "departed from Guam" are present. Nor are there any 6 allegations that the Defendant has ever been to Guam, or would ever have been subject to 7
8 service in Guam. The Court finds the statement that the Defendant is not present in Guam,
9 without any accompanying information regarding the Defendant's previous presence in and IO flight from Guam, or subjection to service in Guam, inadequate to support the issuance of an 11 order for publication and mailing under 7 GCA § 14106. 12
Regarding the Defendant's "concealment" from service, Plaintiff's declaration is silent. 13
14 Service by publication and mailing is not to be lightly granted, nor lightly treated under 7 GCA
15 § 14106, as it is permitted only in the alternative that personal service pursuant to GRCP Rule 16 4(e) or (f) cannot be made because of the Defendant's actions. GRCP Rule 4(e)(1) and (2) and 17 (t). 18
19 The Plaintiff's affidavit fails to allege the minimum requirements for the issuance of an
20 order for service by publication and mailing. The affidavit neither declares that the Defendant 21 has ever resided in Guam, nor that the Defendant has ever concealed herself to avoid service 22 under GRCP Rule 4(e) or (t). A declaration that a person is not present in Guam, without more, 23 does not satisfy the requirements of 7 GCA § 14106. Plaintiff s affidavit further fails to allege 24
25 that personal service pursuant to GRCP Rule 4( e)(1) or (2) or (f) was attempted or was not
26 possible in this case. 27
Page 12 oft8 Decision and Order Domestic Case No. DMOOJS-12 - - - - - - - - - - - - ----------------- Accordingly, the affidavit and the verified complaint fail to establish the Court's
2 jurisdiction over the Defendant as required under 7 GCA 14106 (if applicable) and GRCP Rule
3 8(a). The Plaintiff's Motion for Order Allowing Service by Publication is therefore DENIED. 4 3) No Minimum Contacts Under 7 GCA § 14110(4) 5 The Court may not exercise jurisdiction over a non-resident, except as permitted by the 6 Organic Act and the United States Constitution. 7 GCA §§ 14109 and 14110(4) (2012). Both 7 7
8 GCA §§ 14109 and 14110(4) were adopted directly from California's long-arm statute, codified
9 as California Code of Civil Procedure § 410.10. Under this statute, the Court has jurisdiction IO over a non-consenting, non-resident defendant in a divorce action only if the plaintiff makes a II showing that the defendant has minimum-contacts with the state or territory. Harris Rutsky & 12
Co. Ins. Services, Inc. v. Bell & Clements, 328 F.3d 1122, 1129 (9th Cir. 2003). I3
14 Because the Plaintiff has failed to plead or prove the residency of the Defendant in any
15 United States jurisdiction, the Court is unsure whether the Defendant is a Guam resident or non- 16 resident. The Court can only surmise, based upon the absence of allegations regarding the 17 Defendant's residency, and the allegations regarding the Defendant's "last known address" that 18
19 the Defendant is, most likely, not a resident of Guam.
20 In Harris, the Ninth Circuit determined whether California could exerCIse personal 21 jurisdiction over a non-resident defendant in a divorce action under the long-arn1 statute. The 22 language of CCCP § 410.10 required the court to detern1ine whether due process requirements 23 would be met in an assertion of jurisdiction. Citing to International Shoe Co. v. Washington, 24
25 326 U.S. 310 (1945), the court held that jurisdiction under CCCP § 410.10 would have to meet
26 the threshold minimum-contacts test of the United States Supreme Court. Harris, 328 F.3d 27 1122, 1129 (9th Cir. 2003) ("Due process requires that in order to subject a defendant to a 28
Page 13 of 18 Decision and Order Domestic Case No. DMOOJS-J2
judgment in personam, if he be not present within the territory of the forum, he have certain
2 minimum contacts with it such that the maintenance of the suit does not ofTend traditional
3 notions of fair play and substantial justice."). The Ninth Circuit set forth a tri-partite test for 4 minimum contacts: 1) the non-resident defendant must purposefully direct his activities or 5 consummate some transaction with the forum or resident thereof (or avail himself of the 6 privileges of conducting activities in the forum); 2) the claim must be one which arises out of or 7
8 relates to the defendant's forum-related activities; and 3) the exercise of jurisdiction must
9 comport with fair play and substantial justice (and be reasonable). Id. 10 The Supreme Court of Guam has specifically adopted this test regarding personal 11 jurisdiction over non-resident defendants in Guam, finding, "the Due Process Clause requires a 12
defendant to have 'certain minimum contacts with [the forum] such that the maintenance of the 13
14 suit does not offend traditional notions of fair play and substantial justice:" Mariano, 2010
15 Guam 2, ~ 23 (quoting PCI Commc'ns, Inc. v. GST Pacwest Telecom Haw., Inc., 1999 Guam 16 17 ~ 17)(intemal citations omitted); and Harris Rutsky & Co., 328 F.3d at 1129. 17 In this case, the Plaintiff has failed to meet any of the three requirements to show that 18
19 the Defendant has ever had sufficient contact with Guam such that Guam could assert
20 jurisdiction over her. The Plaintiff fails to allege that the Defendant has ever had any contact 21 with Guam. The Plaintiff fails to allege any fact that would subject the Defendant to the 22 Under the minimum-contacts test, the Court abstains from asserting jurisdiction over the 23 Defendant. Accordingly, the Court has no personal jurisdiction over the Defendant at this time, 24
25 and this case must be dismissed if no amendment to plead and prove personal jurisdiction over
26 the Defendant is made. 27 4) Notions of Fair Play and the Interests of Justice 28
Page 14 of18 Decision and Order Domestic Case No. DMOOlS-12
The Court acknowledges that the first sentence of 19 GCA § 8318(a) seems to indicate
2 that the Court is empowered to grant a decree of divorce when only one party is a resident of
3 Guam. However, the language of this statute is permissive. The sentence states: "[ a] divorce or 4 dissolution of marriage may be granted if one (1) of the parties has been a resident of Guam for 5 at least ninety (90) days immediately preceding the filing of a complaint for divorce, or 6 dissolution of marriage." 19 GCA § 8318( a) (emphasis added). Under the statutory construction 7
8 provisions of the Guam Code, the word "[ s]hall is mandatory and may is permissive." 1 GCA §
9 724(9) (2012). The Court is not required to grant a divorce merely because one party has met 10 the residency requirements of this first statute. The Court may do so, in its discretion, however, 11 the Plaintiff must meet all of the requirements of this Chapter, including pleading and proving 12
the residency of the Defendant, so that the Court may make the most informed decision 13
14 regarding the entire action; and the Court must be satisfied that it has jurisdiction and that Guam
15 is the best forum for the action. This idea is later emphasized in 19 GCA § 8320, which states 16 in relevant portion: "[i]n the event of uncontested, consent or default divorce actions, the court 17 may grant a divorce based upon the verified complaint of the Plaintiff or Petitioner ~r it appears 18
19 to be in the interests ofjustice." 19 GCA § 8320 (emphases added).
20 Most significantly, the first sentence of 19 GCA § 8318( a) cannot be read in isolation. 21 When read in conjunction with 19 GCA §§ 8318(b) and 8319, it appears that a divorce should 22 be granted when only one party is a resident of Guam AND the other party consents and 23 submits themselves to the jurisdiction of the Superior Court. When considered in light of the 24
25 mandates of the United States Constitution and the Organic Act of Guam that the Superior
26 Court of Guam cannot exercise jurisdiction over a non-resident defendant in the absence of 27 minimum contacts with the forum, it is apparent that the only other manner in which the 28
Page 15 ofl8 Decision and Order Domestic Case No. DM001S-12 ------------- ---- Superior Court may exercise jurisdiction over a divorce action when only one party is a resident
2 of Guam is when the non-resident defendant has satisfied the tri-partite minimum contacts test.
3 The Court is not making the finding that a divorce can never be granted when only one 4 party is a resident of Guam, but rather, is making the finding that when only one party is a 5 resident of Guam, in order to grant the dissolution of the marriage, either: 1) the non-resident 6 Defendant must consent to the jurisdiction of the Superior Court of Guam; or 2) the Court must 7
8 be able to find minimum contacts with Guam in order to abide by the Constitution and the
9 Organic Act, and so as not to violate the interests of justice. 10 In this case, as plead, the Court finds none of the hallmarks of the notions of fair play, 11 and finds nothing to show that the grant of this divorce would be in the interests of justice. This 12
appears to be a divorce by ambush against a non-resident Defendant with no ties to Guam. The 13
14 method of notice proposed by the Plaintiff is not reasonably calculated to give actual notice to
15 the Defendant, in that: 1) it appears that the Defendant is most likely a resident of a foreign 16 country, and thus, personal notice as required under GRCP Rule 4(f) has never been attempted 17 in this case; and 2) even if the Defendant is a resident of a United States jurisdiction 18
19 "publication thereof in the Marianas Variety, a newspaper of general circulation published in
20 Guam" Tantamco, Proposed Order for Publication of Summons, p. 1, line 26 (received February 21 8, 2012), will doubtfully reach the Defendant if she does not reside in Guam. See Pineda v. 22 Pineda, 2005 Guam 10 ~ 14 (Regarding service by publication, the Supreme Court of Guam is 23 "mindful that: [c ]hance alone brings to the attention of even a local resident an advertisement in 24
25 small type inserted in the back pages of a newspaper, and if he makes his home outside the area
26 of the newspaper's normal circulation the odds that the information will never reach him are 27
Page 16 of18 Decision and Order Domestic Case No. DMOOlS-12
large indeed.") (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315
2 (1 950))(intemal citations omitted).
3 The Court is not apprised of the Defendant's current residency, such that the complaint 4 is in violation of the statutory requirements. Because the complaint is silent regarding the 5 Defendant's residency, the Court is unable to determine: 1) whether service under the laws of 6 Guam and the United States, including 7 GCA 14106, is applicable to the Defendant; and 2) 7
8 whether Guam is an appropriate forum for this action. There appears to be no reason that the
9 Plaintiff cannot comply with the pleading provisions of 19 GCA § 8319(a), and infoffi1 the 10 Court of the Defendant's current residence. If the Defendant is a resident of a foreign country, 11 then it appears that service can only be made in accordance with GRCP Rule 4(f)(2) or (3), and 12 Plaintiffs request for service through 7 GCA § 14106 is inapplicable. Lastly, if the Defendant 13
14 is a U.S. resident, but not a resident of Guam, the Plaintiff has failed to plead minimum contacts
15 with Guam sufficient to satisfy the "interests of justice" or to show that "substantial justice" 16 would be served by the exercise of personal jurisdiction over the Defendant in this divorce case. 17 As such, the Plaintiff has failed to convince the Court that justice will be served by any attempt 18
19 to exercise personal jurisdiction over the Defendant at this time, and the Complaint for Divorce
20 is DISMISSED WITH LEAVE TO AMEND. 21 CONCLUSION 22 Based upon its review of the complaint, as part of the analysis of the request for an 23 Order for Publication of Summons, which requires analysis of whether there is a cause of action 24
25 against the Defendant under 7 GCA § 14106, the Court finds that the Plaintiff has failed to
26 plead and prove the residency of the Defendant in any United States Jurisdiction, and fails to 27 allege any means by which the Court could exercise personal jurisdiction over the Defendant in 28
Page 17 of 18 Decision and Order Domestic Case No. DM0018-12
consideration of the notions of fair play and justice. The Plaintiff has failed to plead the
2 residency of the Defendant in order for the Court to detennine whether the Defendant is subject
3 to service of process under 7 GCA § 14106, as pennitted by the laws of Guam. Further, even if 4 the Defendant is a resident of a United States jurisdiction, and 7 GCA § 14106 may therefore be 5 applicable in lieu of personal service under Rule 4(f), the affidavit fails to show that the 6 Defendant has "depart[ed]" from Guam, or that she has "conceal[ed]" herself to avoid personal 7
8 service of the complaint as provided under GRCP Rule 4(e)(l) or (2), in order to meet the
9 requirements of 7 GCA § 14106 for publication and mailing in lieu of personal service. Finally, 10 the Plaintiff has never even attempted actual personal service, as may be available under GRCP 11 Rule 4( e)(1) or (2) or (f). Therefore, the Plaintiff s application for an order allowing service by 12
13 publication is DENIED.
14 Consequently, the Complaint for Divorce is DISMISSED without prejudice, with
15 LEAVE TO AMEND within thirty (30) days of the date of this order, in order to plead and 16 prove the residency of the Defendant as required under 19 GCA §8319 and GRCP Rule 8(a), in 17 order to allow the COUli to detennine what manner of service is applicable to the Defendant, 18
19 and/or to plead and prove facts regarding minimum contacts of the Defendant sufficient for the
20 Court to acquire long-ann jurisdiction over the Defendant under 7 GCA § § 14109 and 14110(4) 21 and GRCP Rule 8(a). 22
24 IT IS SO ORDERED this .--J.I.O--'~"--1\_·'_::_i'_-_.~_.._. _:.,.__ 25
26 I do hereby certify thaI the foregoIng /$ a full true and correct 0PY of the 27 original on file in the 0 ce of the clerk of the Superior Cou of Guam. 28 Judge, Superior Court of Guam
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