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For all questions about Guam Divorces, custody or support, ask for attorney Ron Moroni. 1-866-472-1540. PINEDA
V. PINEDA, 2005 Supreme
Court of the No.
CVA04-016. OPINION TYDINGCO-GATEWOOD,
J.: [1]
Plaintiff-Appellant Kennard Cruz Pineda appeals from the trial court's decision
and order vacating the default Interlocutory and Final Judgments of Divorce
granted in his favor. Although we disagree with the trial court's reasoning,
nevertheless, the trial court's vacation of the Interlocutory and Final
Judgments of Divorce was proper pursuant to Rule 60(b)(4) of the Guam Rules of
Civil Procedure. We therefore affirm. I. [2] Kennard
filed a Complaint for Divorce on June 23, 2003. He sought, inter alia, an award
of all the community property of the marriage. The Complaint also stated that
the most recent address for Defendant-Appellee Maria-Thelma Pascual Pineda was
unknown, but that she was “believed to be in FN2. The
Superior Court docket sheet does not include an entry for the Interlocutory
Judgment. It is unknown whether this is a clerical error. If so, it is remedied
by entering the Interlocutory Judgment on the docket. This issue is significant
simply because the Interlocutory Judgment awarded the community property to
Kennard. The Final Judgment does not contain any reference to an award of the
community property and does not incorporate by reference the Interlocutory
Judgment. [3] On April
15, 2004, Maria-Thelma, through counsel, filed a motion to vacate the divorce
judgments. The motion was made under Rule 60(b)(3), permitting the trial court
to vacate judgments if procured by fraud, and Rule 60(b)(4) for vacating
judgments which are void. Maria-Thelma stated that she had never received a
complaint, summons or judgment regarding the divorce proceedings, and that if
she had received notice, she would have retained counsel to protect her
interests. Kennard opposed the motion, arguing that service was proper and that
the court correctly granted the default judgments. [4] A
hearing on the motion to vacate was held on June 3, 2004. The court ruled on
June 25, 2004, that Kennard had satisfied the requirements, under Rule 4(e) of
the Guam Rules of Civil Procedure and Title 7 GCA § 14106, for service upon a
party who is not found on Guam. The court did not address Maria-Thelma's
arguments raised with respect to Rule 60(b)(3) and (4); instead, it recognized
that Rule 60(b)(6) allows a court to “set aside the judgment for any reason
that justifies relief from the judgment.” Appellant's ER, tab 26 (Decision and
Order, June 25, 2004). The court found three reasons to justify setting aside
the judgments; first, that the “record is void of any information that
[Kennard] represented to the Court that a receipt of mailing the letter was
served or received by [Maria-Thelma]”; second, that the court had advised
Kennard that despite entry of the default, Maria-Thelma could seek a set aside
and request her share of community property; and third, that the court had noted
that Maria-Thelma had not been represented by counsel until after the default
had been entered. Appellant's ER, tab 26 (Decision and Order, June 25, 2004). [5] Kennard
timely filed an interlocutory appeal of the June 25, 2004 Decision and Order
with this court on July 23, 2004. He then filed a Statement of Jurisdiction on
August 2, 2004. Maria-Thelma filed an Opposition to the Statement of
Jurisdiction on August 3, 2004, and then filed a Motion to Dismiss for Lack of
Jurisdiction on September 15, 2004. This court denied the motion to dismiss,
finding that interlocutory jurisdiction was properly asserted. See note 3,
infra. II. [6] This
court has jurisdiction over interlocutory appeals. 48 U.S.C. § 1424-1(a)(2)
(West, Westlaw through Pub.L. 109-20 (2005)); Title 7 GCA § 3108(b) (West,
Westlaw through FN3. We
have recognized that the docket sheet attached to the Notice of Appeal indicates
that on November 24, 2003, the Superior Court granted an Interlocutory Divorce
Decree, thereby satisfying the definition of an appealable order pursuant to
Title 7 GCA § 25102(j). Order, Sept. 16, 2004. Further, we noted that the
docket sheet further revealed that the Final Judgment of Divorce was granted on
November 24, 2003, and entered on the docket on March 16, 2004; therefore, the
June 25, 2004 Decision and Order vacating the Final Judgment of Divorce is “an
order made after a judgment appealable by subdivision (a).” Title 7 GCA §
25102(b) (West, Westlaw through III. [7] We
review a trial court's ruling on a Rule 60(b) motion for an abuse of discretion.
Midsea Indus., Inc. v. HK Eng'g, Ltd., 1998 FN4. A
trial court's ruling on a Rule 60(b)(4) motion to set aside a void judgment is a
question of law and thus, subject to de novo review on appeal. Fed. Deposit Ins.
Co. v.Aaronian, 93 F.3d 636, 639 (9th Cir.1996) (“We review de novo, however,
the district court's decision whether to vacate a judgment as void for lack of
personal jurisdiction because this is purely a question of law.”); Retail
Clerks Union Joint Pension Trust v. Freedom Food Ctr., 938 F.2d 136, 137 (9th
Cir.1991)(“[W]we review de novo denial of a 60(b)(4) motion to set aside a
judgment as void, because the question of the validity of a judgment is a legal
one.”). The trial court here did not base its ruling on Rule 60(b)(4);
therefore, the de novo standard of review does not apply. IV. [8] Kennard
appeals from the trial court's decision granting Maria-Thelma's Rule 60(b)
motion to vacate the Interlocutory and Final Judgments of Divorce. Rule 60(b)
allows a party relief from final judgment for several reasons, including fraud
under subsection (3), void judgment under subsection (4), and “any other
reason justifying relief from operation of the judgment” under subsection (6).
[9] The
ultimate issue on appeal is whether the trial court abused its discretion in
relying on Rule 60(b)(6) to vacate the Interlocutory and Final Judgments, which
terminated the marital relationship and awarded the community property of the
marriage.FN5 Kennard argues that the trial court abused its discretion because
it vacated the judgments without considering the three-factor Midsea test for
analyzing Rule 60(b) motions. FN5. During
oral argument, the attorney for Maria-Thelma indicated that the purpose of
Interlocutory Judgment was for division of property, while the purpose of the
Final Judgment was to restore the parties' status to unmarried persons. He cited
no authority for this proposition, and we find none. Rather, Title 19 GCA §
8202 states only that “[t]he effect of a judgment decreeing a dissolution of
marriage is to restore the parties to the state of unmarried persons.” Title
19 GCA § 8202 (West, Westlaw through § 8321.
Decision, Interlocutory Judgment. In actions for dissolution of marriage, the
Court must file its decision and conclusions of law as in other cases, and if it
determines that no dissolution of marriage shall be granted, final judgement
must thereupon be entered accordingly. If it determines that the dissolution of
marriage ought to be granted, interlocutory judgment must be entered, declaring
that the party in whose favor the court decides is entitled to a dissolution of
marriage. After the entry of the interlocutory judgment, neither party shall
have the right to dismiss the action without the consent of the other. An
interlocutory decree of divorce granted pursuant to the provisions of this §
8321 must include the social security numbers of both parties, and of all
children. 19 GCA §
8321 (West, Westlaw through A. Service of Process [10] It is
well settled that when a default judgment is entered without proper service,
such default is void. This is because the trial court lacks personal
jurisdiction if service is defective, and thus, any judgment rendered is void.
See M & K Welding, Inc. v. Leasing Partners L.L.C., 386 F.3d 361, 364 (1st
Cir.2004) (explaining as the “governing principles ··· that a default
judgment issued without jurisdiction over a defendant is void, that it remains
vulnerable to being vacated at any time, and that such jurisdiction depends on
the proper service of process or the waiver of any defect”); U.S. v. One
Toshiba Color Television, 213 F.3d 147, 156 (3rd Cir.2000) (“As a general
matter, we have held that the entry of a default judgment without proper service
of a complaint renders that judgment void.”); Dodco, Inc. v. Am. Bonding Co.,
7 F.3d 1387, 1388 (8th Cir.1993) (“If a defendant is improperly served, the
court lacks jurisdiction over the defendant.”); Mason v. Genisco Tech. Corp.,
960 F.2d 849, 851 (9th Cir.1992) (”A person is not bound by a judgment in a
litigation to which he or she has not been made a party by service of process.);
Recreational Props., Inc. v. Southwest Mortgage Serv. Corp., 804 F.2d 311, 314
(5th Cir.1986) (“If a court lacks jurisdiction over the parties because of
insufficient service of process, the judgment is void and the district court
must set it aside.”). [11] In
Feore v. Feore, the plaintiff in a divorce case effected service by publication
and by mailing to a The Rule
imposes no time limit or deadline after which the plaintiff is absolved of that
responsibility. The law prefers that cases be decided on their merits, hence,
default judgments are generally disfavored···· It follows logically,
therefore, that Rule 4(a) implicitly requires that the plaintiff use due
diligence to ensure that effective service is perfected so as to avoid the entry
of default. [12]
Similarly, we first examine the trial court's finding that Kennard had “met
the requirements under Rule 4(e) and 7 G.C.A. § 14106 for service upon a party
not found within Whenever a
statu[t]e or order of court thereunder provides for service of a summons, or of
a notice ··· upon a party not an inhabitant of, [or] found within Guam,
service shall be made by publication in a newspaper of general circulation for
the prescribed time and by mailing such summons [or] notice ··· to the last
known residence (or post office box) of such party···· Publications shall be
proved by affidavit of an officer or agent of the publisher, stating the dates
of publication with an attached copy of the order as published. Service by mail
shall be accomplished by any form of Guam R. Civ.
P. 4(e) (emphases added). In addition, 7 GCA § 14106 states in relevant part: (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 the service
of summons ··· and the fact appears by affidavit to the satisfaction of 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 respect to whom the service is to be made ··· such court or judge may make
an 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. Postal Service delivery that provides for
written proof of mailing, written proof of delivery and restricted delivery to
the addressee only. Title 7 GCA
§ 14106 (emphases added). Thus, both Rule 4(e) and 7 GCA § 14106 require both
publication and mailing. [13] It is
undisputed that the trial court's order provided only that service be made by
publication, and did not address the mailing requirement as required by statute.
Notwithstanding the omission in the court's order, proper service under Rule
4(e) and 7 GCA § 14106 requires that Kennard also mail the summons to
Maria-Thelma. In short, the order's omission does not excuse Kennard from
complying with service by mail as required by [14] Kennard
asserts that he complied with the trial court's order. We agree, insofar as he
complied with all aspects of service by publication. The summons was printed
“for the prescribed time” in the Pacific Daily News, which the parties did
not dispute (either at trial or in this proceeding) is a “newspaper of general
circulation.” GRCP 4(e). Further, Kennard filed an affidavit from the Pacific
Daily News, which indicated the days of publication, and attached a copy of the
summons as it was published. Kennard's compliance with service by publication is
not disputed; however, we are mindful that: Chance
alone brings to the attention of even a local resident an advertisement in small
type inserted in the back pages of a newspaper, and if he makes his home outside
the area of the newspaper's normal circulation the odds that the information
will never reach him are large indeed. Feore, 1993
WL 128361, at * 4 (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 [15] The
record does not support Kennard's contention that he complied with the mailing
requirement. Rule 4(e) requires that “[s]ervice by mail shall be accomplished
by any form of [16] Kennard
offers, as proof of compliance with the mailing requirement, a photocopy of an
envelope addressed to Maria-Thelma at [17]
Kennard's contentions reveal, at most, only marginal compliance with the mailing
requirement. Clearly, the letter was sent by Certified Mail, but there is no way
to verify Kennard's declaration that Return Receipt was used. The letter was
simply returned with a stamp stating: “Returned to Sender, Attempted, Not
Known.” Appellant's ER, tab 24 (Kennard Pineda Decl., Ex. 1). Furthermore, the
envelope and Kennard's Declaration do not indicate use of Restricted Delivery
service, as required by FN6.
Restricted Delivery through the U.S. Postal Service is separate from, and is not
included as a part of, Certified Mail or Return Receipt service. See http://www.usps.com.
[18] Upon
review of the relevant facts, we hold that Kennard failed to comply with the
service by mailing requirements under FN7. We do
not today reach the issue of whether actual notice may cure a technical defect
in service, because in the record before us, there is no evidence that
Maria-Thelma had actual notice and Kennard does not argue that she had actual
notice. See, e.g., Gibble v. Car-Lene Research, Inc., 78 Cal.Rptr.2d 892, 903
(Ct.App.1998) (“[T]the statutory provisions regarding service of process
should be liberally construed to effectuate service and uphold the jurisdiction
of the court if actual notice has been received by the defendant.”); cf.
Williams v. Williams, 150 S.W.3d 436, 444 (Tex.App.2004) (“As long as the
record as a whole ··· shows that the citation was served on the defendant in
the suit, service of process will not be invalidated.”). [19] We are
left with a definite and firm conviction that the trial court made a mistake in
finding that Kennard had satisfied the requirements for service upon
Maria-Thelma. A trial court has “no discretion to refuse vacating a judgment
if it is void. When it is found that there has been defective service of
process, the judgment is void····” In re Cossio, 163 B.R. 150, 154 (B.A.P.
9th Cir .1994) (citation omitted). The Interlocutory and Final Judgments were
granted despite Kennard's failure to comply with service requirements,
therefore, the judgments are void. [20]
Although the trial court correctly vacated the judgments, we do not agree with
the analysis adopted by the trial court in reaching the correct result. First,
the trial court did not use Rule 60(b)(4) as the basis to grant the motion. Our
examination reveals that because of Kennard's failure to comply with statutory
service requirements, the trial court's judgment is void. In re Cossio, 163 B.R.
at 154. Second, the trial court should not have relied on Rule 60(b)(6) as the
basis for granting the motion. We have stated that “if the circumstances
alleged fall into any of the other [Rule 60(b) ] subsections allowing set aside,
then relief under subsection (6) cannot be had.” Brown v. Eastman Kodak Co.,
2000 [21] The
trial court abused its discretion in setting aside the judgment pursuant to Rule
60(b)(6), rather than Rule 60(b)(4). “There is an abuse of discretion if the
trial court did not apply the correct law, [or] erroneously interpreted the law····”
In the Interest of N.A., 2001 Guam 7, ¶ 13; see also People v. Tuncap, 1998
Guam 13 ¶ 13 (“[A] court abuses its discretion by not applying the correct
law ···· [and] when the law is erroneously interpreted.”) (citation
omitted). B.
Midsea factors [22] Kennard
argues that the trial court abused its discretion because it vacated the
judgments without considering the three-factor Midsea test for analyzing Rule
60(b) motions. [23]
Kennard's reliance on Midsea is misplaced; the test should be applied when a
court is evaluating whether to deny setting aside the judgment. V. [24] We hold
first, that
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