Making Foreign Divorce Judgments, Orders and Decrees

Valid and Enforceable Court Orders of the United States

Source: http://www.aaml.org/Articles/2001-01/Foreign%20Support%20Orders.htm

By Peter M. Walzer and Laurel Brauer

People from every country come to United States to escape financial and personal problems or to just make a better life for themselves. They bring with them past due support, stolen children and unpaid property settlements. Spouses, ex-spouses and lovers follow their ex-mates here with their foreign court orders to recover their money or children. Kidnapped children, unpaid support, and unsatisfied money judgments are the fallout from a litigious and peripatetic populace. The challenge for the family lawyer is to enforce a foreign court order issued by an alien court system with different rules, procedures, and standards.

Before a state’s law can be utilized to enforce foreign divorce judgments the foreign court order must first be established as a domestic order. To establish the order as a state court order, it must be recognized by our courts as valid.

The full faith and credit clause of the United States Constitution prescribes that a state must recognize the public acts, records, and judicial proceedings of every other state. However, this mandate does not apply to the decrees of foreign countries. Even without the assurance of the full faith and credit clause, our courts may give recognition to the judgment of a foreign nation as matter of comity. The comity doctrine holds that, as a courtesy, a court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary and is reviewed on an abuse of discretion standard⁴ allowing the trial court wide latitude. Because the comity doctrine is discretionary, it is undependable.

Due to the comity doctrine's unreliability, business and government agencies have lobbied successfully for legislation that will insure that support orders, money judgments and custody decrees issued in foreign countries will be recognized by our courts in the same manner as they would recognize the judgments of the other states. The statutes which serve this purpose were drafted by the National Conference of Commissioners on Uniform State Laws. The Uniform Child Custody Jurisdiction Act is designed to enforce custody state court decrees⁵ and the Uniform Interstate Family Support Act enforces support orders⁶ between the states. They each, however, include provisions that allow for the recognition of foreign country court orders. The Uniform Foreign Recognition of Money Judgments Act⁷ ("UFMJRA") was drafted specifically to insure that the money judgments from other countries will be recognized by state courts.⁸

The uniform laws relating to support and custody permit the registration of foreign court orders in our state courts. Objections to registration and enforcement issues are resolved in the family law courts in jurisdictions large enough to have separate family law departments. Registration simplifies the process because the order becomes a state court order at the time of registration, subject to the Respondent’s or Obligor’s right to object to registration. On the other hand, to obtain recognition of orders for the payment of non-support foreign money judgments under UFMJRA, a complaint must be filed to establish the judgment as a civil action in the trial court. The issues raised under UFMJRA relating to jurisdiction and enforcement are resolved in the civil trial courts even though they may arise out of a family law judgment.⁹

The statutes described above cover most orders in a divorce decree — custody orders, support orders, orders for the payment of money to equalize the division of the marital property and orders for attorney’s fees.

Foreign orders for the division of real property are not covered by any uniform law. The comity doctrine is the only recourse in obtaining recognition of this type of foreign court order. The party enforcing a foreign court order to divide real property in state court may bring an action for partition as civil proceeding in the state district or trial court. When these actions are filed, a lis pendens should be filed and recorded concurrently in the county where the property is located.

Whether the foreign order is recognized as a valid state order utilizing the common law comity doctrine or is established pursuant to statute, the same constitutional jurisdictional prerequisites apply.¹⁰ Thus, the state court must first determine whether the foreign country had jurisdiction over the parties when the order was issued. For the purpose of determining whether the foreign court had jurisdiction, a divorce judgment is not usually treated as if it were one court order. The divorce judgment is unique in that it contains separate court orders for support, custody, children and property each having different jurisdictional requirements. This division of the divorce judgment into separate orders with different jurisdictional requirements is called the doctrine of divisible divorce.¹¹ Thus, for a court to recognize an order or enforce a divorce judgment it must have the requisite jurisdiction over the part of the decree that must be enforced.

To properly terminate marital status the court must have subject matter jurisdiction over the res; child custody orders require subject matter jurisdiction over the children; orders for the payment of money require in personam jurisdiction; and orders regarding property division may require both in rem and in personam jurisdiction.¹² The doctrine of divisible divorce can result in anomalous results. An order for custody can be issued in one country and an order for support in another country. For example, if a child of divorcing parents were legally living in California for six or more months¹³ at the date the divorce is filed, the California court would have subject matter jurisdiction to make custody orders, but if the parent who is obligated to pay support for the child were living in Scotland, and our court did not have personal jurisdiction over him, a support proceeding would have to be commenced in Scotland.

Once the state court has determined that the foreign court had proper jurisdiction to issue the order, it must then determine if the defendant had notice and an opportunity to be heard in the foreign country.¹⁴ Only after these Constitutional requirements are met and the order is recognized, can it be enforced in the United States.

Recognition of Foreign Custody Orders

Foreign custody orders are enforced in state courts pursuant to each state’s version of the Uniform Child Custody Jurisdiction Act ("UCCJA") To register a foreign judgment, a certified copy¹⁵ of that judgment must be filed in the superior court of the county in which it is to be enforced¹⁶ along with a translation of that judgment¹⁷ and with a declaration filed under the UCCJA giving the children’s present address, when the children were living for the last 5 years, and when the children have lived with during that time. The declarant must also disclose any other proceedings pending and anyone else having a right of custody.¹⁸ This declaration provides information to the court which may assist it determining whether it has jurisdiction.

Once the custody order is registered, it can be enforced using the same procedures as would any other state court order. Notice of the registration is not required. When the enforcement of the registered order is sought, the type of notice given will depend on the remedy needed. In the case of a kidnaping, often no notice is required. The defendant may challenge the registration on the basis that the foreign court’s orders are invalid by filing a motion to quash or dismiss. If the order was rendered in a country whose institutions are similar to those of other states and a "reasonable notice and opportunity to be heard was given to affected persons"¹⁹ that order will be recognized in the United States.

In re Marriage of Malak²⁰ is significant in that it affirms that our courts will recognize court orders from countries with laws different from our own. The trial court in Malak refused to recognize the child custody orders of the Sherei Sunnit Court of Beirut, Lebanon because the court believed that the Islamic court issued an interim custody decree without notice, that the order did not afford Mrs. Malak "notice and opportunity to be heard," and because the Islamic court did not appear to hold the "best interest of the child a central consideration in its determination of custody."²¹ The appellate court reversed the trial court and found that Lebanese law provided for reasonable notice and an opportunity to be heard and was not unlike California's ex parte procedure. Further, since the Lebanese court acted when Lebanon was homeland of both parties²², had significant connections with the family²³ and its laws looked to the best interests of children, it acted under statutory provisions substantially in accordance with our uniform custody laws²⁴. In Dart v. Dart (1997) 224 Mich. App. 146 568 N.W. 2d 224, a Michigan Plaintiff argued that at English judgment "need not be recognized under the UFMJRA because the English system is repugnant to the public policy of this state because of its treatment of women as ‘second-class citizens’," its provisions for only limited discovery, its failure to take wife’s contribution to the family into account, and its failure to try the issue of fault. [citation] at p. 6

The court held that "a foreign judgment is not conclusive if it was rendered under a system that does not provide in partial tribunals or proceedings compatible with due process of law." But the court found that the English showed no bias and that if the issue of fault had been tried, the Plaintiff would not have benefited there was no comment by the court on the issue of women being second class citizens in England (at pages 6 & 7).

In situations where different countries issue valid conflicting custody orders, priority is given to the first person to file their custody action.²⁵ An instructive example of how this type of conflict was resolved is described in In re Stephanie M.²⁶ In Stephanie M. it was held that a California dependency court properly refused to recognize the custody order of a Mexican court when the Mexican court order was issued after the dependency court issued its order terminating the parental rights of a Mexican couple living in Long Beach. The child’s grandmother (who lived in Mexico) along with the child’s foster parents both requested they be appointed guardians of the child. After a thorough investigation and numerous hearings the trial court granted the foster parents guardianship. Only after the California court entered its final order did a Mexican court issue a conflicting order granting the guardianship of the child to the grandmother. The Mexican consulate wrote a letter advising the California court that there was a guardianship decree from a Mexican court and that pursuant to the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes of April 23, 1963,²⁷ the California court had to recognize and enforce the Mexican court order.²⁸ The California dependency court refused to vacate its order and enforce the Mexican order. The California Supreme Court affirmed the trial court’s decision and held that although California courts may enforce foreign custody orders of other countries, they are not obligated to do so.²⁹ The Supreme court further held that the letter from the Mexican consulate informing it there was a guardianship decree from a Mexican court does not bind the California court where there was a prior California judgment terminating the parental rights of Mexican child.³⁰ Moreover, the Supreme Court held that the Multilateral Vienna Convention does not apply since that treaty recognizes the jurisdiction of a court in the receiving state (in this case California) to apply its laws to a foreign national and does not make jurisdiction dependent on notice (the Mexican consulate claimed it was not given notice). The Supreme Court held that the trial court properly applied the Uniform Child Custody Jurisdiction Act³¹ which states that international custody orders are to be enforced to the same extent that the order of a sister state would be enforced.³²

One of the purposes of the Uniform Child Custody Jurisdiction Act is to "deter abductions and other unilateral removals of children undertaken to obtain custody awards."³³ To recover stolen children requires quick and decisive action on the part of the attorney. After registering the certified copy of the foreign order (with the translation), a warrant in lieu of writ of habeas corpus can be filed to order the release of the child.³⁴ The assistance of the District Attorney can be used to locate the party and the child and to bring the child to the hearing. The party detaining the child may attempt to persuade the court to conduct a hearing to determine the best interest of the child. This attempt to relitigate the issue of custody must be vigorously resisted. The only issues that should be addressed at the hearing is whether there is a valid foreign court order, whether the order was made by an institution similar in nature to ours, and whether the party had notice and opportunity to be heard in the foreign jurisdiction.³⁵

The party detaining the child is also likely to argue that the court should assert "emergency jurisdiction" under Uniform Child Custody Jurisdiction Act because "the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent which includes a child who has a parent who is victim of domestic violence...."

Emergency jurisdiction should only be asserted for the purpose of insuring that the child is safely returned to the country that issued the custody order and not for the purpose of modifying the foreign country's’ court order.³⁶

The party seeking to enforce a foreign custody order can also request that the party violating the order pay attorney’s fees, travel costs, and other expenses to the party and their witnesses.³⁷

Foreign Support Orders and Paternity Judgments

The Uniform Interstate Family Support Act ("UIFSA") was drafted to more efficiently enforce the child and spousal support orders as well as paternity judgments of other states and countries. The prerequisite to enforce another country's orders under UIFSA is that the country of origin must have a "law or procedure substantially similar to UIFSA's, or one of UIFSA's precursors -- the Uniform Reciprocal Enforcement of Support Act ("URESA") and the Revised Uniform Reciprocal Enforcement of Support Act ("RURESA"). UIFSA does not require that there be reciprocity between the foreign country and our states for a foreign support order to be enforced.

UIFSA may be used to collect a foreign support order as well as related costs and fees, interest, income withholding, attorney's fees, and other relief." UIFSA also provides for the recognition of foreign paternity judgments. UIFSA allows the recognition of orders from "administrative law agencies or a quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage." This definition provides latitude to enforce orders made in foreign countries with legal system is very different from the United States.

To register a foreign support order under UIFSA the applicant must file two copies, including one certified copy, of all orders to be registered (including a translation), including any modification of an order with the applicable judicial council form or a letter to the court clerk requesting registration.

On receipt of a request for registration, the court will file the order as a foreign judgment, together with one copy of the foreign court order, regardless of the form of the request. The request must specify the grounds for the enforcement remedy sought. An application for a determination of arrearages under the foreign court order or an actual writ of execution may be issued on application to the court at the same time the order is registered or at later date. A support order or income-withholding order is registered when the order is filed. Once registered, the foreign order may be enforced like any other support order issued by this state.

Under the former support act (URESA), the majority of support proceedings were relitigated in the local court even though the foreign court's order was clear and unambiguous. Furthermore, even when an existing order of one state was "registered" in a The United States, the defending party often asserted the right to modify the foreign order. This meant that several different support orders could be in effect in several states or countries. This problem is rectified by UIFSA in that the state court may not modify the foreign court order if it is determined that the foreign court had proper jurisdiction to issue its order unless neither party resides in the foreign country or if the parties agree in writing that it can modified in the State.

When a support order or income withholding order issued in another country is registered in the state under UIFSA, the clerk will send out a notice of the registration to the party who owes the support. The notice informs the party that they have twenty days to contest the validity or enforcement of a registered order in this state. The party objecting to the registration may seek to vacate the registration, assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages. If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.

A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:

(1) The issuing tribunal lacked personal jurisdiction over the contesting party.

(2) The order was obtained by fraud.

(3) The order has been vacated, suspended, or modified by a later order.

(4) The issuing tribunal has stayed the order pending appeal.

(5) There is a defense under the law of this state to the remedy sought.

(6) Full or partial payment has been made.

(7) The statute of limitation precludes enforcement of some or all of the arrearages.

Refusal to permit visitation cannot be used as a defense to support orders registered pursuant to this act,despite the fact that there is conflicting state law regarding this issue. When registering a paternity judgment of a foreign country under UIFSA, nonparentage cannot be plead as a defense to enforcement. In a provision modeled after a similar section in the UCCJA , UIFSA provides that a court may contact the court of another state in writing, or by telephone or other means to obtain information concerning the laws of that state, the legal effect of an order of that tribunal, and of a proceeding in the other country. The law of the foreign country governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order as well as discovery that must be done in the foreign country. The procedural, substantive and choice of law rules of the state are controlling in all other respects

UIFSA provides an even more streamlined method of enforcing wage assignment orders. The act does not require the wage assignment order to be registered. Rather the wage assignment order can be sent directly to the obligor’s employer which triggers wage withholding by that employer without the necessity of a hearing - unless the employee files an objection with the court.

Money Judgments

The Uniform Foreign Money-Judgments Recognition Act ("UFMJRA") covers family law orders for the payment of money which are not for spousal or child support. To be recognized by our courts, the UFMJRA requires that the order conclusive and enforceable (even though an appeal may be pending or is subject to appeal). The defendant may apply for a stay of enforcement if an appeal is pending or the defendant is entitled to and intends to appeal the judgment. Once established, the order is enforceable as though it was a judgment of another state. There is no expedited method of registration of foreign judgments like there is under UIFSA. A complaint to establish a foreign country judgment must be filed in The state alleging the elements set forth in the UFMJRA.

The UFMJRA requires that before giving recognition to a foreign judgment there must be personal jurisdiction over the defendant. Under the statute, personal jurisdiction is obtained by personal service in the foreign country, a voluntarily general appearance of the defendant, consent to service in the foreign country, or the defendant was domiciled in the foreign country.

The defenses to recognition of the foreign court order under the UFMJRA are:

(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

(2) The foreign court did not have personal jurisdiction over the defendant;

(3) The foreign court did not have jurisdiction over the subject matter;

(4) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;

(5) The judgment was obtained by extrinsic fraud;

(6) The cause of action or defense on which the judgment is based is repugnant to the public policy of this state;

(7) The judgment conflicts with another final and conclusive judgment;

(8) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceeding in that court;

(9) In the case where jurisdiction is based solely on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.

State legislatures should bolster the Uniform Foreign Money Judgments Recognition Act by adding a section that would authorize the registration of certified family law money judgments similar to that provided for by the UCCJA which permits the filing of foreign custody orders or to UIFSA which permits registering foreign support orders. A certified copy of the foreign judgment would be filed in our court with a family law case number. Any objections relating to the validity of the foreign court order could be addressed at the time enforcement procedures commenced. This amendment would mean that most foreign divorce orders (except those relating to real property and restraining order) would be addressed in the family law department in an expedited manner by registration.

The uniform statutes described above do not explain how to calculate the dollar amount of a judgment issued in a foreign currency, but in Pecaflor Construction, Inc. v. Landes it was held that when enforcing a foreign judgment rendered in a foreign currency, the foreign money judgment must ordinarily be converted to American dollars using the exchange rate that was in effect at the time of the foreign judgment.

The lawyer enforcing a foreign judgment in state court must use ingenuity in obtaining recognition of that judgment. While some orders in a judgment require registration, other orders in the same judgment require that a complaint be filed to establish the order as a state court order. Despite the fact that several statutes address the diverse aspects of a divorce judgment, most orders will be recognized by state courts without having to rely on the comity doctrine.

As international commerce continues to expand and people immigrate to the United States in greater numbers, lawyers will need more efficient means of enforcing foreign court orders. With a few revisions to the current uniform statutes, the enforcement of foreign divorce judgments in state courts, which once involved expensive civil litigation, will be accomplished simply and cost effectively in the family law court.