RECOGNITION OF FOREIGN COUNTRY DIVORCE DECREES PURSUANT TO THE DOCTRINE OF COMITY
© 1996 National Legal Research Group, Inc.
Two facts about modern society have created a huge problem for modern courts. First, approximately 50% of all marriages end in divorce. Thus, there is a tremendous demand for fast, painless, and inexpensive dissolution of marriages. Second, Americans can travel quickly and relatively inexpensively to foreign countries by planes, trains, and automobiles.
Because of these two facts, Americans frequently travel to foreign countries in order to obtain quick divorces. Of course, when a spouse travels to Mexico, the Dominican Republic, or some other country to obtain a divorce, that spouse will leave most of his or her property, children, and, quite frequently, the other spouse in the United States. Thus, regardless of its validity in the foreign country, if the divorce is not valid in the United States, the divorce will have little meaning.
This article discusses the issue of whether a foreign divorce judgment should be recognized by courts in the United States under the doctrine of comity among nations. The article first defines comity and discusses the factors which a court will consider when determining whether to accord recognition to a foreign judgment of divorce. In the next section, the article addresses the issue of whether a spouse should be prevented by principles of equity from claiming that a foreign country's divorce is invalid. Then, the article discusses some special problems that a party may face if that party seeks recognition of a foreign country's judgment of support, child custody, or equitable distribution.
It is quite possible that in addition to recognition under principles of comity, a state legislature may have enacted a statute which facilitates recognition and enforcement of a foreign country's divorce, support, or equitable distribution judgments. See generally Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 183 (1986); Uniform Foreign Money-Judgments Recognition Act, 13 U.L.A. 261 (1986). These statutes are beyond the scope of this article. Thus, not only should practitioners consider the issues of comity among nations as discussed in this article, they should also investigate the possibility of a statutory remedy.
II. FACTORS FOR CONSIDERATION
Federal law has been clear for many years that the Full Faith and Credit Clause does not apply to judgments of foreign countries. Thus, the Constitution of the United States does not require that states give full force and effect to divorce judgments of foreign nations. Magner v. Hobby, 215 F.2d 190 (2d Cir. 1954); Watson v. Blakely, 106 N.M. 687, 748 P.2d 984 (1987); Atassi v. Atassi, ___ N.C. App. ___, 451 S.E.2d 371 (1995); Sargent v. Sargent, 225 Pa. Super. 1, 307 A.2d 353 (1973).
Since courts in the United States are not required by the Constitution to recognize foreign divorces, courts will only recognize foreign judgments of divorce if the judgments are in accordance with the principles of comity among nations.
In Will of Brown, 132 Misc. 2d 811, 505 N.Y.S.2d 334, 337 (Sur. Ct. 1986), the court described the concept of comity among nations:
It is well established in American law that, subject to possible obligations imposed by treaty between the United States and a foreign power, there is no constitutional obligation upon a state to recognize a judgment rendered by a court of another nation. But, with due regard to international duty and convenience, and the sense that respect is due to the judicial act of another sovereign, comity, that is, voluntary deference, is customarily accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that in the foreign tribunal there was a jurisdictional predicate in the procedural due process sense and that the public policy of the particular State is not thereby contravened. Should the decree fail to meet these criteria, it will not be recognized as such.As the court wrote, so long as a foreign judgment did not violate a party's basic due process rights and the judgment comported with public policy, a foreign country's judgment should be recognized by states pursuant to the doctrine of comity among nations.
In determining whether to recognize a judgment of divorce of a foreign nation, courts in the United States consider several factors.
The most important factor that a court in the United States will consider is the domicile of the parties. Generally, if neither party was domiciled in the foreign country when the court of the foreign country granted the judgment of divorce, the judgment of divorce is not entitled to recognition.
A good example was provided by the case of Basiouny v. Basiouny, 445 So. 2d 916 (Ala. Civ. App. 1984). In Basiouny, the parties were married in Egypt in 1969. Shortly thereafter, they moved to the United States. Thereafter, the parties permanently resided in the United States. The wife filed a complaint for divorce in 1982. While the wife's action was pending, however, the husband obtained a divorce in Egypt. When the husband obtained this divorce, he had only resided in Egypt for two weeks. The trial court in Alabama refused to recognize the Egyptian divorce, and granted the wife a divorce. The husband appealed.
The Alabama Court of Civil Appeals affirmed the trial court's decision to refuse to recognize the Egyptian divorce. The court of civil appeals specifically noted that Alabama would not recognize a foreign decree unless at least one of the parties was domiciled in that foreign country. "Domicile," as the court stated, "requires a residence at a particular place and an intent to remain there permanently, or for an indefinite length of time." Id. at 919. Hence, because the facts indicated that the husband intended to return to the United States after his two-week stay and the wife had not left the United States, neither party had established a domicile in Egypt. Therefore, it was proper for the trial court to refuse to recognize the Egyptian divorce.
Similarly, in Sargent v. Sargent, 225 Pa. Super. 1, 307 A.2d 353 (1973), the parties resided in the United States for 12 years as husband and wife. Then, the parties separated and the husband went to Mexico. Six days after arriving in Mexico, the husband filed an action for divorce. The wife was personally served with process. Three weeks after the wife received service, the court in Mexico granted a divorce to the husband. Even before the court in Mexico granted the divorce, the husband moved back to the United States. Approximately five years after the Mexican divorce, a court in Pennsylvania concluded that the Mexican divorce was not entitled to recognition, and ordered the husband to pay alimony to the wife. The husband appealed.
The Superior Court of Pennsylvania agreed with the trial court that the husband's Mexican divorce decree should not be recognized. The superior court noted that if the plaintiff in a divorce matter is actually domiciled in Mexico, the Mexican divorce would be entitled to recognition. If, however, the plaintiff (1) did not reside in Mexico for a minimum period of time, and (2) did not intend to stay in Mexico, the Mexican judgment of divorce should not be recognized:
An absolute prerequisite to judicial recognition of an out-of-state divorce is that the plaintiff must have resided in the state or country for a minimum period of residency as determined by local authority and that the residency be accompanied by "domiciliary intent", i.e., an intent to remain in the foreign jurisdiction.307 A.2d at 356 (court's emphasis). Thus, because the husband only resided in Mexico for a very short period and was only in Mexico for the purpose of obtaining the divorce, principles of comity did not require recognition of the Mexican divorce.
The clear majority rule is the rule of Sargent and Basiouny: If the plaintiff is not domiciled in the foreign country, a court in the United States should not recognize and enforce a foreign judgment of divorce. For cases following this rule, see Lugot v. Harris, 499 F. Supp. 1118 (D. Nev. 1980) (husband had no domicile in foreign country; no recognition); Butler v. Butler, 239 A.2d 616 (D.C. 1968) (plaintiff only in Mexico for a few hours; no recognition); Kittle v. Kittle, 194 So. 2d 640 (Fla. DCA 1967) (plaintiff only in Mexico for a few days; no recognition); Warrender v. Warrender, 79 N.J. Super. 114, 190 A.2d 684 (App. Div. 1963) (neither party was domiciled in Mexico; no recognition); Schacht v. Schacht, 435 S.W.2d 197 (Tex. Civ. App. 1968) (plaintiff had not established a residence in foreign country; no recognition).
By contrast, if either party is a domiciliary of the foreign country, a court in the United States should normally recognize a foreign divorce decree. Schwartz v. Zik, 273 N.J. Super. 78, 640 A.2d 1212 (Ch. Div. 1993); In re Marriage of Zadorozny, 70 Wash. App. 464, 853 P.2d 960 (1993).
The majority rule on the importance of domicile can be contrasted with the rule in New York. Under New York law, so long as the defendant participated in the divorce proceeding, the court will recognize and enforce the "bilateral" divorce of a foreign country, even if neither party has established a domicile there. The New York Court of Appeals stated this rule in Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86 (1965). In Rosenstiel, both parties were residents of New York. In 1954, the husband went to El Paso, Texas, and registered in a hotel that was slightly north of the Mexican border. The next day, the husband crossed the border and filed an action for divorce. Within one hour, the husband returned to El Paso. The next day, the wife's attorney appeared at the Mexican divorce proceedings. On the same day, the court in Mexico divorced the parties. Thus, within 24 hours, the husband had entered Mexico, filed the action for divorce, and obtained the divorce in Mexico.
Subsequently, the wife married her second husband. The second husband filed an action for an annulment, claiming that the wife's divorce was invalid. The trial court refused to recognize the Mexican decree and granted the second husband an annulment. The appellate division reversed the decision of the trial court. The second husband appealed to the Court of Appeals of New York.
Unlike most of the courts that have considered this issue, the Court of Appeals of New York held that, even if neither party is domiciled in a foreign country, the foreign country's divorce decree is entitled to recognition if both parties participated in the proceedings. The court noted that, although the husband had met the Mexican residency requirements, he clearly had not established a domicile. 262 N.Y.S.2d at 89. Nonetheless, the court of appeals played down the importance of the domicile requirement:
The duration of domicile in sister States providing by statute for a minimal time to acquire domicile as necessary to matrimonial action jurisdiction is in actual practice complied with by a mere formal gesture having no more relation to the actual situs of the marriage or to true domicile than the formality of signing the [Mexican city] register. The difference in time is not truly significant of a difference in intent or purpose or in effect.Id. at 90. Thus, the court of appeals believed that a domicile is a mere formality. Therefore, the State of New York had no greater interest in recognizing a foreign divorce based on a long residency in the foreign country versus a foreign divorce based on a short residency. Rather, so long as the plaintiff has met the residency requirements of the foreign jurisdiction, the defendant has participated in the divorce proceedings, and the divorce was not obtained by fraud, a foreign country's divorce is entitled to recognition in New York. Accord Matter of Lovick, 201 A.D.2d 736, 608 N.Y.S.2d 310 (1994); Altman v. Altman, 150 A.D.2d 304, 542 N.Y.S.2d 7 (1989); Becker v. Becker, 143 Misc. 2d 500, 541 N.Y.S.2d 699 (Sup. Ct. 1989); Will of Brown, 132 Misc. 2d 811, 505 N.Y.S.2d 334 (Sur. Ct. 1986). The same rule of law is also followed in Tennessee. Hyde v. Hyde, 562 S.W.2d 194 (Tenn. 1978).
The State or country of true domicile has the closest real public interest in a marriage but, where a New York spouse goes elsewhere to establish a synthetic domicile to meet technical acceptance of a matrimonial suit, our public interest is not affected differently by a formality of one day than by a formality of six weeks.
Another important factor for the court to consider when determining whether to recognize a foreign judgment of divorce under the doctrine of comity is the question of notice. The Due Process Clause of the Fourteenth Amendment requires that the defendant be given reasonable notice of any civil action filed against him. Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950). For this reason, if the defendant did not receive notice of the divorce action before the foreign country's court entered the judgment of divorce, a court in the United States should not recognize the judgment of divorce.
The court entered this decision in Blair v. Blair, 643 N.E.2d 933 (Ind. Ct. App. 1994). In Blair, the parties resided in the United States as husband and wife for almost 40 years. Then, the husband filed an action for divorce in the Dominican Republic. The husband did not notify the wife of either the filing of the action or the hearing. The wife did not attend the hearing, and the wife received no notice of the matter until after the court in the Dominican Republic entered a judgment of divorce. Several months later, the wife obtained knowledge of the judgment of divorce. The wife filed an action in Indiana in which she requested a declaration that the Dominican judgment of divorce be declared void. The trial court refused to recognize the judgment of divorce. The husband appealed.
The Court of Appeals of Indiana affirmed the trial court's decision to refuse to recognize the divorce decree. The court noted that it would be improper for a trial court to recognize a judgment of a foreign country for divorce if the defendant did not receive notice until after the date of the judgment:
Here, the undisputed evidence establishes that Patricia was never in the Dominican Republic, that neither she nor her representatives were given notice of the filing of the matter or any hearing held, that she was unaware of the decree for a substantial time after it was entered, that she immediately challenged the decree in an action that was later dismissed to promote the parties' reconciliation. . . . The trial court properly refused to recognize the Dominican Republic decree.Id. at 937. Thus, if the defendant does not receive notice of the application for divorce and the hearings, the court should not recognize the foreign country's judgment of divorce pursuant to the doctrine of comity. See also Whelpley v. De Athayde Costa, 648 So. 2d 1252 (Fla. DCA 1995) (Brazilian custody decree was not entitled to recognition in Florida where the judgment was obtained without notice to the defendant); Ali v. Ali, 279 N.J. Super. 154, 652 A.2d 253 (Ch. Div. 1994) (foreign divorce judgment was not entitled to recognition where the defendant received no notice).
In contrast, if the defendant receives timely notice, it is likely that a court in the United States will recognize the foreign judgment of divorce. For example, in In re Marriage of Silvestri-Gagliardoni, 186 Ill. App. 3d 46, 542 N.E.2d 106 (1989), the parties' marital domicile was in Italy. Five years after the marriage, the husband filed an action in Italy in which he requested a judicial separation. The wife received notice of the petition and the hearings. Both parties participated in the proceedings and entered into a separation agreement that was approved by the Italian court. Approximately one month later, the wife filed an action for divorce in a court in Chicago. The husband moved to dismiss the wife's divorce action. The trial court noted that the wife was a resident of Italy, the wife had received adequate notice of the Italian action, and both parties were well represented in the divorce proceedings in Italy. For these reasons, the trial court in Illinois dismissed the divorce action. The wife appealed.
On appeal, the wife argued that the Italian decree "did not meet the standards of recognition of a foreign judgment." 542 N.E.2d at 110. The appellate court noted, however, that the wife had received adequate notice of the Italian proceedings, and that the Italian court had personal jurisdiction over the wife and subject-matter jurisdiction. Therefore, the trial court correctly recognized the Italian judgment and dismissed the wife's divorce action.
In addition, the defendant spouse may not argue that he or she did not receive adequate notice of the foreign divorce action where the defendant refused to accept service. The court entered this decision in Vause v. Vause, 140 Wis. 2d 157, 409 N.W.2d 412 (Ct. App. 1987). In Vause, the husband and wife were members of the United States Air Force. Shortly after their marriage, the wife was stationed in Turkey and the husband was stationed in Germany. Approximately one year later, the husband filed a divorce action in Germany. The husband "made numerous attempts to serve her with `papers' regarding the divorce action in the West German court but she refused to accept service." 409 N.W.2d at 415. In addition, the husband called her on several occasions to discuss the proceedings, and the husband informed the wife of the date of the hearing. The Wisconsin Court of Appeals held that the German court properly exercised jurisdiction, because "[a] person cannot refuse to accept service and then object that service and notice was incomplete." Id. Hence, a party is deemed to have adequate notice of a foreign country's divorce proceedings even if that party refuses to accept service of process.
"A foreign divorce will not be recognized by comity where it was obtained under circumstances which offend the public policy of the state in which recognition is sought." 24 Am. Jur. 2d "Divorce and Separation" 1107 at 1091-92 (1984).
If, for example, the judgment by the court in the foreign country included a custody decision that was not based on the "best interests" standard, the foreign judgment should not be recognized. Ali v. Ali, 279 N.J. Super. 154, 652 A.2d 253 (Ch. Div. 1994). In Ali, the wife was an American citizen while the husband was a Palestinian. For several years, the parties and their child resided in Gaza. Then, the parties separated and the wife moved to New Jersey, while the child remained in Gaza with the husband. Subsequently, the husband and the child moved to the United States where they resided for approximately two years. Then, the child and husband went back to Gaza. Several days after returning to Gaza, the husband obtained an ex parte divorce and an order of custody. The custody decision was not based upon the best interests of the child. Rather, the court in Gaza awarded the husband custody because, under Islamic law, the father is entitled to custody of a boy when the boy reaches the age of seven.
Subsequently, the wife filed an action for divorce and custody in a court in New Jersey. In this action, the wife argued that the judgment by the court in Gaza was not entitled to recognition in the United States. The trial court agreed with the wife and the husband appealed.
The New Jersey Superior Court held that the judgment by the court in Gaza was not entitled to recognition under principles of comity. The court stated that it was firmly established that a custody decision must be based upon the best interests of the child. Islamic law, however, created an irrebuttable presumption that the husband should receive custody. Because this standard was not based upon the child's best interests, the decision by the court in Gaza violated New Jersey public policy and was not entitled to recognition under principles of comity:
However, it is revealing that the defendant submitted proof in support of his request for comity which indicates that, under Muslim law, a father is automatically entitled to custody when a boy is seven (Article 391 of Islamic Sharia Law); the mother can apply to prolong custody until the boy is nine (Article 118 of the Law of Family Rights)[;] however, at that time, the father or the paternal grandfather are irrebuttably entitled to custody. Such presumptions in law cannot be said by any stretch of the imagination to comport with the law of New Jersey whereby custody determinations are made based upon the "best interests" of the child and not some mechanical formula.652 A.2d at 259. Hence, if the decision by the court in a foreign country was not based upon the best interests of the child, the decision offends the public policy of courts in the United States. Furthermore, decisions by courts in a foreign nation that offend American public policy are not entitled to recognition under principles of comity.
Another way that a decision by a court in a foreign nation may offend the public policy of a state is if the parties collusively obtained a "mail order" divorce in the foreign country. In such cases, courts universally conclude that the divorce is not entitled to recognition under principles of comity. See, e.g., In re Petition of Chong Jah Alix, 252 F. Supp. 313 (D. Haw. 1965) (Massachusetts law); Butler v. Butler, 239 A.2d 616 (D.C. 1968); Warrender v. Warrender, 79 N.J. Super. 114, 190 A.2d 684 (App. Div. 1963). Even courts in New York, which will recognize foreign divorces even if neither party was domiciled in the foreign country, will refuse to recognize "mail order" divorces. See, e.g., Alzmann v. Maher, 231 A.D. 139, 246 N.Y.S. 60 (1930) (divorce obtained in a Mexican court was invalid where neither party ever went to Mexico). See generally Annot., "Domestic Recognition of Divorce Decree Obtained in Foreign Country and Attacked for Lack of Domicile or Jurisdiction of Parties," 13 A.L.R.3d 1419 (1967 & Supp. 1994).
It is well established that if a judgment for divorce was obtained by fraud in a foreign country, a court in the United States will refuse to recognize the foreign judgment under principles of comity. In fact, if the judgment was fraudulently obtained, the judgment is subject to a collateral attack in a proceeding in the United States.
A good example is provided by the case of Feinberg v. Feinberg, 96 Misc. 2d 443, 409 N.Y.S.2d 365 (Sup. Ct. 1978). In Feinberg, the husband filed an action for divorce in the Dominican Republic. The court granted a judgment of divorce. Subsequently, the wife instituted an action in New York for the purpose of setting aside the divorce decree. The wife alleged that the husband "falsely and fraudulently misrepresented and concealed the true nature and extent of his financial worth," and "fraudulently concealed from the [wife] the existence of pending negotiations for the sale of the family wine-importing business." 409 N.Y.S.2d at 366. The wife also alleged that the husband engaged in these fraudulent acts in order to induce her to enter into a separation agreement and execute a power of attorney to authorize counsel to appear on her behalf at the Dominican divorce proceeding. The husband countered by arguing that the judgment was not subject to collateral attack in the United States.
The court held that if the wife was fraudulently induced into entering into the agreement and executing the power of attorney, the judgment of divorce was subject to collateral attack. In entering this decision, the court wrote:
It may be shown at the trial herein that were it not for such fraudulent representations by the defendant, the plaintiff would not have submitted her marital rights to adjudication by a foreign court at a time when, because of her then ignorance of the alleged fraud, she could not raise such issue in that forum, and that she was thereby deprived of an opportunity to be then heard on that question.Id. at 373. Thus, if a party has been fraudulently induced into engaging in divorce proceedings in a foreign country, not only is the judgment not entitled to recognition in this country but the judgment is subject to collateral attack. See alsoTal v. Tal, 158 Misc. 2d 703, 601 N.Y.S.2d 530 (Sup. Ct. 1993) (court in New York need not recognize a foreign nation's judgment which was procured by fraud); Kantrowitz v. Kantrowitz, 21 A.D.2d 654, 249 N.Y.S.2d 723 (1964) (Mexican divorce obtained as a result of fraud on the wife was not entitled to recognition under principles of comity); Corvin v. Commonwealth, 131 Va. 649, 108 S.E. 651 (1921) (where one party gave false testimony in a foreign jurisdiction concerning the merits of the divorce action, court in Virginia need not recognize the judgment under principles of comity).
III. EQUITABLE DEFENSES TO CLAIMS OF INVALIDITY
Even if a foreign country's judgment of divorce should not be recognized pursuant to principles of comity, it is quite possible that the party who is opposed to the recognition of the judgment will be prevented by equity from raising the invalidity of a judgment. Generally, foreign countries' decrees of divorce are presumed valid. In re Marriage of DeLeon, 804 S.W.2d 801 (Mo. Ct. App. 1991). Thus, the party claiming invalidity has the burden of proof. Id. If the party claiming invalidity fails to meet this burden, or equity prevents the party from claiming invalidity, the court should recognize the judgment.
In some circumstances, a party's conduct will prevent that party from claiming that a foreign country's decree of divorce is invalid. For example, it is well established that the party who initiated the proceeding in the foreign country cannot later claim that the foreign country's decree is invalid. See Perrin v. Perrin, 408 F.2d 107 (3d Cir. 1969); Weinberg v. Todd Shipyards, 97 N.J. Super. 289, 235 A.2d 42 (App. Div. 1967); Application of Holland, 150 A.D.2d 193, 540 N.Y.S.2d 803 (1989); Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (1984).
Furthermore, if the defendant made an appearance at the divorce proceedings, courts often will conclude that the defendant is estopped from claiming that the divorce is invalid. An example is provided by the case of Bruneau v. Bruneau, 3 Conn. App. 453, 489 A.2d 1049 (1985). In Bruneau, the parties were married in 1942. In 1965, the husband petitioned for a divorce in Mexico. The wife appeared by counsel and consented to the jurisdiction of the Mexican court. The Mexican court granted a divorce to the parties. The divorce decree incorporated the parties' separation agreement. Approximately 19 years later, the wife filed an action for divorce in Connecticut. The husband moved to dismiss the action, arguing that the parties had already been divorced. The trial court agreed with the husband and dismissed the action. The wife appealed.
On appeal, the Appellate Court of Connecticut recognized the rule that a foreign country's divorce is not entitled to recognition unless at least one spouse was a good-faith domiciliary of the foreign country. Nonetheless, the court held that, for three reasons, the wife was estopped from attacking the judgment. First, the wife waited 19 years to attack the judgment. Second, the wife had accepted benefits of the judgment. Third, the wife participated in obtaining the judgment of divorce. As the court wrote, "[u]nder the circumstances, to permit the plaintiff to challenge the validity of the decree would amount to allowing her to take advantage of a fraud in which she participated by being one of the parties to the Mexican proceeding." 489 A.2d at 1053. Thus, if a party appears by counsel in the foreign divorce proceeding, that party may not be able to later attack the foreign country's judgment. See also Mayer v. Mayer, 66 N.C. App. 522, 311 S.E.2d 659 (1984) (husband was estopped from later attacking foreign divorce decree where he actively participated in proceedings); Webb v. Webb, 461 S.W.2d 204 (Tex. Civ. App. 1970) (husband could not challenge Mexican divorce where he actively participated in the divorce proceedings). But see Kazin v. Kazin, 161 N.J. Super. 174, 391 A.2d 536 (App. Div. 1978) (husband was not estopped from attacking divorce decree even though he accompanied wife on trip to Mexico for the purpose of securing the divorce decree).
In some circumstances, however, even if the party seeking a declaration of invalidity of the foreign decree helped procure the foreign divorce, that party will not be estopped from claiming its invalidity. For example, in Weber v. Weber, 200 Neb. 659, 265 N.W.2d 436 (1978), the husband and wife were domiciliaries of Nebraska. The husband was a successful attorney, and the wife was a homemaker. After a 25-year marriage, the parties agreed to get divorced. In order to avoid publicity, the husband decided to obtain a divorce in the Dominican Republic. For this reason, the husband obtained a power of attorney form, and the wife signed it. The wife never actually spoke to an attorney. Also, the husband drafted a property settlement agreement which awarded the husband over $400,000 in property, while the wife was awarded very little property and alimony. The wife signed the agreement without seeking the advice of counsel. The husband then obtained a divorce after a two-day trip to the Dominican Republic.
Shortly thereafter, the wife obtained the advice of an attorney and filed an action for divorce in Nebraska. Claiming that the parties were already divorced, the husband moved to dismiss the wife's action. The trial court refused to recognize the Dominican divorce, and awarded the wife a divorce, a substantial amount of property, and attorney's fees. The husband appealed.
On appeal, the husband argued that, pursuant to the doctrine of comity, the court should recognize the Dominican divorce decree. 265 N.W.2d at 440. The court noted, however, that "courts in this country have generally not recognized a foreign judgment of divorce unless, by the standards of the jurisdiction in which recognition is sought, at least one of the spouses was a good-faith domiciliary in the foreign nation at the time the decree was rendered." Id. at 441. Hence, because neither party was domiciled in the Dominican Republic at the time of the divorce decree, it was proper for the trial court to refuse to recognize the decree.
Nonetheless, the husband argued that because the wife "voluntarily submitted to the jurisdiction of the foreign court, and accepted the benefits of the foreign decree," the wife should be estopped from claiming that the decree should not be recognized. Id. However, the Supreme Court of Nebraska held that because the husband dominated the wife, and because neither party had altered their position in reliance on the decree, the wife was not estopped from claiming that the Dominican divorce decree was invalid:
An important factor in this case, however, is that the respondent, an attorney, was the dominant figure in obtaining the foreign decree, and he persuaded the petitioner to act when he knew she was without the aid of counsel, and was not knowledgeable with respect to applicable law and her rights thereunder. The record also reveals that the petitioner was not fully aware of the amount of property acquired by the parties since the marriage, as the respondent controlled the family finances to the exclusion of the petitioner. Finally, the record does not reflect that either party, in reliance on the foreign divorce, altered his or her position in such a manner that it would now be inequitable to permit the petitioner to challenge the decree.Id. Thus, in some circumstances, even if the party claiming invalidity of the foreign divorce participated in procuring the divorce, that party will not be estopped from claiming that the divorce is invalid. See also Lamb v. Lamb, 61 Misc. 2d 1032, 307 N.Y.S.2d 218 (Fam. Ct. 1969) (husband was not estopped from claiming that his second marriage was invalid, even though his first wife participated in procuring the Mexican divorce, where his first wife was incompetent at the time of the Mexican divorce).
In addition, it is also well established that if a party remarried in reliance on a foreign divorce, that party is estopped from claiming that the foreign divorce is invalid. Oakley v. Oakley, 30 Colo. App. 292, 493 P.2d 381 (1972); Lambert v. Lambert, 524 So. 2d 686 (Fla. DCA 1988); Scribner v. Scribner, 556 So. 2d 350 (Miss. 1990); Weinberg v. Todd Shipyards, 97 N.J. Super. 289, 235 A.2d 42 (App. Div. 1967); Capalbo v. Capalbo, 157 A.D.2d 696, 549 N.Y.S.2d 794 (1990); Lowenschuss v. Lowenschuss, 396 Pa. Super. 531, 579 A.2d 377 (1990).
Furthermore, a party will be precluded from arguing that a prior foreign divorce is invalid if that party unreasonably delayed in attacking the divorce decree, and the delay caused prejudice to the opposing party. In In re Estate of Brown, 132 Misc. 2d 811, 505 N.Y.S.2d 334 (Sup. Ct. 1986), for example, the husband, the wife, and their children were long-time residents of New York. From 1952 until 1961, the husband resided in South Korea. In 1961, the husband filed for divorce in South Korea. Even though the wife received notice of the action, the wife did not participate in the proceedings. The notices were, however, in the Korean language. For this reason, the wife ignored the notices. In 1962, the court in South Korea granted the husband a final decree of divorce. Shortly after the divorce, the husband married his second wife.
In 1982, the husband died. The husband's will made no provision for his first wife. The first wife filed a request to claim a right of election against the will. Then, the second wife filed an action for a judgment that the first wife could not claim a right of election. The second wife argued that the first wife should be estopped from claiming that the divorce was invalid.
The court agreed that the first wife should be estopped from claiming that the divorce was invalid. The court suggested that had the wife sought to declare the divorce invalid shortly after learning of the decree, it was possible that "she would have prevailed on her claim to recognition by this State as his true wife. However, she took no such action." 505 N.Y.S.2d at 340. Hence, if a spouse unreasonably delays in filing an action to deny recognition of a foreign country's divorce, and that delay causes prejudice to the other party, the foreign country's divorce should be recognized even though the principles of comity dictate otherwise. See also Keller v. Keller, 521 So. 2d 273 (Fla. DCA 1988) (the husband was estopped from claiming that a Mexican divorce was invalid where the husband delayed 20 years and the husband's second wife married him on the assumption that the divorce was valid). But see Pascucci v. Bowen, 659 F. Supp. 1002 (E.D.N.Y. 1987) (even though the wife delayed 26 years in claiming that the husband's ex parte Mexican divorce was invalid, the wife was not estopped from claiming its invalidity where the wife had not remarried, had never changed her married name, and reasonably believed that she was still married).
IV. PARTICULAR PROBLEMS ASSOCIATED WITH JUDGMENTS OF SUPPORT, CHILD CUSTODY, AND EQUITABLE DISTRIBUTION
Just as with divorce decrees, if a foreign court determines issues of support, child custody, or division of the parties' property, those judgments should only be recognized if the judgments do not violate the principles of comity among nations.
However, the question of whether a court in the United States should recognize and enforce a foreign support, child custody, or equitable distribution decision presents issues in addition to comity. Even if a judgment of support or child custody rendered by a court in a foreign country is entitled to recognition under the doctrine of comity, a court in the United States may still not be required to recognize the judgment. This section discusses the extra hurdles that a party seeking enforcement must overcome when a party seeks recognition of a foreign country's judgments of support, child custody, and division of the parties' property.
With respect to child custody, although the Uniform Child Custody Jurisdiction Act (UCCJA) does not govern international cases, 23 of the Act permits courts to apply the principles of the UCCJA to cases involving courts of other nations.
In practice, courts regularly rely on the provisions of the UCCJA when determining whether to enforce a foreign country's custody decision. See, e.g., Webb v. Webb, 546 N.E.2d 306 (Ind. Ct. App. 1989); Bak v. Bak, 4 Mass. App. Ct. 608, 511 N.E.2d 625 (1987); Klein v. Klein, 141 Misc. 2d 174, 533 N.Y.S.2d 211 (Sup. Ct. 1988); Garza v. Harney, 726 S.W.2d 198 (Tex. Ct. App. 1987); Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362 (1984). Thus, not only must practitioners consider general principles of comity in child custody matters involving foreign nations, practitioners also must consider the provisions of the UCCJA. See Koster v. Montgomery, 886 S.W.2d 432 (Tex. Ct. App. 1994) (Texas court would not recognize Venezuelan custody decree under doctrine of comity where the wife was never served with process and the decree was obtained ex parte).
Furthermore, the foreign country at issue may be a party to the Hague Convention on the Civil Aspects of International Child Abduction, 19 I.L.M. 1501 (1980). This convention states that children must be returned to their "habitual residence" if that residence is also a party to the convention. Thus, if the foreign country is a signatory to the Hague Convention, a foreign country's custody judgment is not entitled to recognition in the United States unless that decision comports with the UCCJA, the Hague Convention, and general principles of comity among nations.
Alimony and Child Support
Generally, a foreign order of alimony or child support should be recognized by courts in the United States if the judgment complied with general principles of comity. See Knothe v. Rose, 195 Ga. App. 7, 392 S.E.2d 570 (1990) (foreign judgment ordering increase in support was entitled to recognition under principles of comity even though the judgment did not specify a date for termination of the payments); Schwartz v. Zik, 273 N.J. Super. 78, 640 A.2d 1212 (Ch. Div. 1993) (New Jersey court recognized Israeli child support decree pursuant to principles of comity; husband was represented by counsel and the judgment did not violate the public policy of New Jersey); Fickling v. Fickling, 210 A.D.2d 223, 619 N.Y.S.2d 749 (1994) (support judgment of foreign country is entitled to recognition under doctrine of comity, absent showing of fraud in procurement of the judgment or that the recognition of the judgment would do violence to some strong public policy of the state).
Nonetheless, in Kulko v. Superior Court, 436 U.S. 84 (1978), the Supreme Court held that a court need not accord full faith and credit to a foreign state's support order unless the foreign court had personal jurisdiction over the obligee.
Since Kulko, courts that have considered the issue have concluded that a support judgment of a foreign nation is only entitled to recognition and enforcement by courts in this country if the foreign nation's court had personal jurisdiction over the defendant. Thus, support orders of foreign countries are only entitled to recognition and enforcement by courts in the United States if the party seeking enforcement establishes two facts. First, the foreign court must have had personal jurisdiction over the defendant. Second, the foreign judgment must accord with principles of comity.
For example, in Fickling v. Fickling, 210 A.D.2d 223, 619 N.Y.S.2d 749 (1994), the husband and wife resided in Australia with their four children for more than 10 years. In 1986, the husband moved to New York and the wife commenced divorce proceedings in Australia. The Australian court divided the parties' property and awarded child support to the wife. Subsequently, the wife attempted to enforce the judgment in New York. At the enforcement proceeding, the husband claimed that he was never notified of the divorce proceedings. The facts indicated, however, that the husband was represented by counsel at the hearings and that his business representatives appeared on his behalf. The trial court held that the support judgment was enforceable. The husband appealed.
On appeal, the appellate division noted that the court in Australia had personal jurisdiction over the husband. Furthermore, the court wrote that "after personal jurisdiction over the defaulting party has been obtained, the judgment is entitled to recognition under the doctrine of comity, absent evidence of extrinsic fraud." 619 N.Y.S.2d at 750. Hence, a foreign support order is only entitled to recognition and enforcement by courts in the United States if (1) the foreign nation had personal jurisdiction over the defendant, and (2) the judgment complied with principles of comity.
As with support matters, courts have held that in order to consider questions of equitable distribution, the court must obtain personal jurisdiction over the defendant. See B. Turner, Equitable Distribution of Property 3.07 (2d ed. 1994 & Supp. 1995). Thus, a court is only required to give full faith and credit to an equitable distribution decision by a sister state if that state had obtained personal jurisdiction over the defendant. Id.
Certainly, a court in the United States would provide no less protection to a defendant if the plaintiff obtained the divorce in a foreign country. Thus, if a foreign country grants a divorce without obtaining personal jurisdiction over the defendant, a court in the United States which obtains personal jurisdiction over the parties is free to ignore the equitable distribution decision, if any, entered by the foreign court. See Gibson v. Gibson, 5 Va. App. 426, 364 S.E.2d 518 (1988) (subsequent to foreign ex parte proceeding in which divorce is granted, Virginia court which obtained personal jurisdiction over both parties and the subject matter may adjudicate the parties' property rights). Thus, as with support issues, the foreign court's distribution of the parties' property decision will not be recognized and enforced by a court in the United States unless (1) the foreign court obtained personal jurisdiction over the defendant, and (2) the judgment satisfies principles of comity.
As the above authority indicates, courts throughout the 20th century have grappled with issues concerning whether a foreign country's divorce judgments should be recognized in the United States. The biggest dispute exists between courts in New York and the courts in the rest of the United States. Courts in New York consistently recognize foreign countries' divorce judgments even if neither party was domiciled in the foreign country. See, e.g., Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86 (1965). Other states consistently refuse to recognize a foreign country's divorce judgment unless at least one party established a good-faith domicile in the foreign country. See, e.g., Basiouny v. Basiouny, 445 So. 2d 916 (Ala. Civ. App. 1984).
Reason dictates that the New York Legislature should rethink its policy. Every American state has adopted some form of no-fault divorce statute, and it is generally very easy to obtain a divorce under these statutes. See generally Borris, "Can't We All Just Get Along? Fault-Based Divorces in the 1990s," 7 Divorce Litigation 97 (1995). In order to prevent parties from obtaining divorces on a whim, states maintain residency requirements and separation periods. Why should parties, as in Rosenstiel and its prodigy, be able to circumvent the public policy promoted by these statutes by simply obtaining a round-trip plane ticket to the Dominican Republic or Mexico?
Furthermore, as this article has indicated, encouraging parties to leave the country in order to obtain "quickie" divorces tends to create a host of side effects. For example, frequently, the other party receives no notice of the divorce and does not participate in the proceedings. See, e.g., Whelpley v. De Athayde Costa, 648 So. 2d 1252 (Fla. DCA 1995). If, however, the parties are encouraged to litigate the divorce proceedings where they are domiciled, it is far more likely that both parties will have sufficient notice and opportunity to contest the matters. Thus, encouraging parties to litigate in their domicile may prevent unnecessary future litigation concerning the validity of the judgment. The better approach is to recognize foreign divorce decrees only where at least one spouse is domiciled in the foreign country.
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