Case of the Day: Kim v. Min Sun Cha
Posted on December 21, 2020
The case of the day is Kim v. Min Sun Cha (Guam 2020). The wife, a South Korean national, and the husband, a former South Korean national now a US citizen, married in 2012 and had a child. The wife left Guam for South Korea in 2016 with the child, and the husband brought a divorce action in Guam. The wife then brought a divorce action in South Korea, and the husband petitioned the South Korean court to order return of the child to Guam under The Hague Child Abduction Convention. The South Korean court rejected the petition to return the child on the ground that both countries could be considered its habitual residence and because the husband had consented to the child’s stay in South Korea.
The husband had served the wife with process in the Guam action by mail to her last known address, with the Court’s permission. According to the decision, “the envelope mailed to [the wife] did not include a name for the addressee and was discovered by [her] only because the guard at her apartment building told her about an envelope from Guam in the return-to- sender box.” Acting on her attorneys’ advice, she did not respond to the suit. The husband sought entry of default, and then, unusually, made a request to the South Korean central authority for service. The central authority failed to make service and returned a certificate to that effect. The Guamanian judge entered a divorce decree that awarded joint legal custody and gave the husband primary physical custody and ordered the return of the children to Guam. The wife then sought to register the South Korean order denying the husband’s petition for a return in the Guam court, and she sought to set aside the default judgment. The court denied the request to set aside the default judgment, and thew wife appealed.
The court correctly held that the Convention applied and that under Schlunk the method of service had to comply with the Convention because the Convention is exclusive. The husband argued that the wife’s address was unknown, but of course, this argument had to fail because the husband in fact sent the documents to his wife at her correct address. The court went on to hold that the service by mail was impermissible because South Korea has objected to service by postal channels.
The husband next argued that he had sent the documents to the central authority and was entitled to a default judgment under Article 15. Again, the court correctly rejected this argument. Although six months had passed, the certification from the central authority that it had not made service was plainly sufficient to defeat a request for a default under the provision of Article 15 providing for a default judgment when six months have passed and “no certificate of any kind has been received.” Quoting another decision, the court said: “Article 15 simply cannot be employed, as it was below, to default a defendant who is known not have been served.” This is (to me) obviously correct.
For these reasons, the court found the judgment void.