Kim v. Cha, (2020)

2020 Guam 22

EDWARD KIM, Plaintiff-Appellee, v. MIN SUN CHA, Defendant-Appellant.

Supreme Court Case No.: CVA18-020

SUPREME COURT OF GUAM

Argued and submitted: March 12, 2019

Resubmitted: August 1, 2019

December 14, 2020

Superior Court Case No.: DM0376-16

OPINION

Appeal from the Superior Court of Guam

Argued and submitted on March 12, 2019

Resubmitted August 1, 2019

Hagåtña, Guam

Appearing for Defendant-Appellant:

Gloria Lujan Rudolph, Esq.

Lujan & Wolff LLP

DNA Bldg.

238 Archbishop Flores St., Ste. 300

Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:

Daniel S. Somerfleck, Esq.

Somerfleck & Associates, PLLC

Nelson Bldg.

886 Rte. 7, Ste. 102

Maina, GU 96910 BEFORE: KATHERINE A. MARAMAN, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; ROBERT J. TORRES, Associate Justice.¹

MARAMAN, C.J.:

[1] The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("Hague Service Convention") is an international treaty governing the service of judicial documents in certain foreign countries. In this divorce and custody action, Defendant-Appellant Min Sun Cha ("Cha") appeals the denial of her motion to set aside a default judgment. The Superior Court entered default judgment after failed attempts at official service on Cha through the Republic of Korea's ("South Korea") Central Authority. In moving to set aside the judgment, Cha alleges she was never properly served with the action as provided in the Hague Service Convention. The Superior Court refused to set aside the judgment because Cha received actual notice of the action when the complaint was mailed to her in South Korea. Because South Korea has specifically objected to service by mail, we conclude that Plaintiff-Appellee Edward Kim failed to establish that proper service was made on Cha. He also fails to meet any applicable exception to service under the Hague Service Convention. For the following reasons, we reverse the Superior Court's order denying relief under Guam Rule of Civil Procedure 60(b)(4) and remand with directions to vacate the default judgment and litigate the case on the merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] In 2012, Cha, a South Korean citizen, married Kim, a former South Korean citizen and citizen of the United States. See Record on Appeal ("RA"), tab 50 at 1 (Dec. & Order, June 28, 2018); DM0376-16 (Req. for Registration Pursuant to 7 GCA § 39305, Mar. 6, 2018) (containingSeoul Family Court Ruling, Jan. 23, 2017).² In 2014, the couple had a child. In April 2016, Cha left Guam for South Korea with the couple's child. In July 2016, Kim filed for divorce in Guam. In September 2016, allegedly unaware of the divorce petition pending in Guam, Cha filed for divorce in South Korea. While the divorce actions were pending, Kim filed a request for the return of the child in the Seoul Family Court in South Korea. Both Kim and Cha participated in these proceedings, where the Seoul Family Court determined that the child should remain in South Korea under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Abduction Convention"). On January 20, 2017, the Seoul Family Court determined (1) that the child's habitual residence could be established in both Guam and South Korea and (2) that Cha did not illegally abduct or detain the child under the Hague Abduction Convention because, in part, Kim consented to the child's prior and current stays in South Korea. Kim's appeals of this decision were denied.

[3] Kim made several attempts to serve the Guam divorce action upon Cha. In July 2016, upon Kim's motion, the Superior Court ordered that service be made by publication and by mail to Cha's last known address in South Korea. The envelope mailed to Cha did not include a name for the addressee and was discovered by Cha only because the guard at her apartment building told her about an envelope from Guam in the return-to-sender box. Cha consulted a South Korean attorney and an attorney formerly licensed in Guam and was advised by both attorneys that she was not properly served and did not need to respond to the suit.

[4] On September 14, 2016, Kim filed a Request to Enter Default and Entry of Default. In November 2016, Kim made his first request for service through the South Korean Central Authority.³ He received a certificate of non-service dated December 21, 2016. After the Seoul Family Court entered its judgment, Kim attempted a second request for service of the Guam divorce action through the South Korean Central Authority in March 2017. He received a certificate of non-service dated May 2, 2017. Also in March 2017, Kim, through his attorney, mailed documents related to an order to show cause for custody pendente lite to Cha in South Korea. The Superior Court re-issued the order to show cause for custody pendente lite on May 2, 2017, which Kim again tried to serve by mail.

[5] After Cha failed to appear for the hearing on the order to show cause, the Superior Court entered an Order After Hearing, an Interlocutory Default Judgment of Divorce, and the Final Decree of Divorce, all filed on July 25, 2017. In addition to declaring the parties divorced and dividing the marital property, the Superior Court awarded the parties joint legal custody of the child, while awarding Kim primary physical custody with reasonable visitation to Cha. The Superior Court ordered the immediate return of the child to Guam.

[6] Kim's final appeal of the Seoul Family Court's decision was denied on September 12, 2017. On March 6, 2018, Cha, through counsel, submitted a request for registration of the Seoul Family Court judgments. Counsel's letter was received by the Superior Court but never entered on the docket. On March 28, 2018, Cha moved to set aside or vacate the default judgment under Guam Rules of Civil Procedure ("GRCP") 60(b)(1), 60(b)(4), and 55(c).

[7] On June 28, 2018, the Superior Court denied Cha's motion to vacate the default judgment. The court determined that Cha's failure to respond to the lawsuit after acquiring actual notice of the summons and complaint mailed to South Korea constituted culpable conduct warranting denial of her motion to vacate. The Superior Court also found that Cha's reliance on advice from attorneys not licensed in Guam was not done in good faith because "she was, or should have been, aware that she was receiving advice about Guam law from lawyers who were not licensed to practice American law." RA, tab 50 at 6 (Dec. & Order, June 28, 2018). Cha timely appealed.

[8] While the appeal was pending, this court issued a limited remand of the case to the Superior Court to determine whether the divorce action was properly served and a default judgment entered consistent with the Hague Service Convention. The Superior Court found that a certificate of non-service from the Central Authority is not a "certificate of any kind" under the Hague Service Convention.

II. JURISDICTION

[9] This court has jurisdiction over an appeal from an order made after a final judgment. 7 GCA § 25102(b) (2005); 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-214 (2020)); 7 GCA §§ 3107(b), 3108(a) (2005).

III. STANDARD OF REVIEW

[10] Treaty interpretation is a question of law, which we review de novo. See, e.g., Swarna v. Al-Awadi, 622 F.3d 123, 132 (2d Cir. 2010) ("We review de novo a district court's interpretation of a treaty . . . ."); United States v. Alvarez-Machain, 504 U.S. 655, 663-68 (1992) (applying de novo review to treaty interpretation); Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir. 1995).

[11] This case also involves a motion to set aside a judgment. The standard of review of a denial of a motion to set aside a default judgment under GRCP 60(b) is determined by the specific subdivision asserted. We review de novo a denial of a motion to set aside a default judgment brought under GRCP 60(b)(4). Mariano v. Surla, 2010 Guam 2 ¶ 8. But when lack of service of process is at issue, we review the Superior Court's determinations of the facts for clear error. Id. For motions brought under other subsections of GRCP 60(b), we review the Superior Court's decision for abuse of discretion. Id. ¶ 7.

IV. ANALYSIS

[12] Kim and Cha disagree over the validity of the default judgment entered against Cha in this divorce and custody action. We therefore begin by reciting the general principle that a default judgment is "a drastic measure, only appropriate in extreme circumstances because, whenever possible, cases should be decided on their merits." Midsea Indus., Inc. v. HK Eng'g, Ltd., 1998 Guam 14 ¶ 6. However, the default judgment does not merely require us to weigh questions of fairness and substantial justice. When the default judgment was entered against Cha—a South Korean citizen—she was in South Korea and never received formal legal process. Questions of international service of process and how a civil action is started against a foreign defendant compose the primary dispute here. Questions of due process and international comity are also central to our discussion.

[13] In discussing this case, we will explain why Cha's motion to set aside the default judgment was timely. Second, we will discuss how Kim failed to comply with the Hague Service Convention. Part and parcel to this discussion, we will also analyze the reasons proffered by Kim which, in his view, either satisfy his service obligations or excuse compliance with the Hague Service Convention. We will address Kim's arguments on why the default judgment should not be set aside. Ultimately, however, the law compels us to reverse the Superior Court's order denying the motion to set aside the default judgment for improper service of process. In this opinion, we will explain why the default judgment is void, and we will remand the action to the Superior Court with directions to vacate the default judgment and address the merits of the dispute.

A. Cha Timely Filed the Motion to Set Aside the Default Judgment

[14] Under GRCP 60(b), a party may seek relief...