Ms. Cha (South Korean) married Mr. Kim (American) and had a child in 2014. In April 2016, Ms. Cha left their home in Guam with the child for South Korea. Mr. Kim filed for divorce in Guam 3 months later, and in September 2016, Ms. Cha filed for divorce in South Korea. Mr. Kim also filed a request to return the minor child to Guam using the Hague Abduction Convention. The South Korean court rejected his request saying that both Guam and South Korea were the child’s habitual residence and Mr. Kim had, at least in part, consented to the child’s prior and current time in South Korea. His appeals were denied.
This case revolves around Mr. Kim’s attempts to serve Ms. Cha with his Guam divorce papers using the Hague Service Convention. He apparently made several attempts using the South Korean Central Authority, and he received a certificate of non-service from their office. Mr. Kim then attempted to serve Ms. Cha by sending her the legal documents by postal mail. She apparently did receive the envelope after being alerted by her building staff that it was in a return-to-sender box. She received legal advice to not respond, as it was improper service, since South Korea objected to service by postal mail. Mr. Kim proceeded to secure a default judgment against Ms. Cha. Ms. Cha filed to set aside the default, which the trial court denied saying she had “actual notice.”
“[I]f documents must be transmitted abroad to effect service, using procedures outlined in the Convention is mandatory.” “[I]n cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise applicable law.” South Korea has objected to service by mail. Mr. Kim knew Ms. Cha’s address, so the Convention dictates, and he cannot use postal mail to serve her.
This then left Mr. Kim with his attempts to serve Ms. Cha through the South Korean Central Authority. Apparently he attempted this six separate times, which resulted in a certificate of non-service. The court noted that Mr. Kim’s delivery of the documents to the Central Authority does not equate to service. The Central Authority is not a process server. Delivery of documents to a Central Authority is only a request for service. Mr. Kim referred the court to Article 15 of the Convention which gives an exception under which the Guam court could nonetheless render a judgment. He argued that he received “no certificate of any kind.” However, the Court of Appeals disagreed and concluded that the certificate of non-service that Mr. Kim received was a certificate, meaning Mr. Kim could not avail himself of the Article 15 exception. “A “certificate of any kind” is a broad standard that includes more than just certificates of service. Documents evidencing service, attempts at service, or valid objections to service meet the standard. Here, the certificates of non-service, whether issued directly from South Korea’s Central Authority or instead from the Seoul Family Court (as the Superior Court found), constitute “certificates of any kind” under Article 15.”
Finally, the court was not persuaded by Mr. Kim’s equitable arguments. Actual notice is not a substitute for legal notice. He provided no notice to Ms. Cha through lawful means.
Also, read Ted Folkman’s blog post on the same case.