October 2016 Bar Bulletin
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October 2016 Bar Bulletin

Foreign Comity Principles May Apply
in Divorce Proceedings

By Kim Schnuelle


A young man calls you at the office one Friday afternoon. He tells you that he was divorced last year in Germany and that, as part of the final settlement, a significant money judgment was entered against his ex-wife. She was to pay him this judgment within a month of the divorce being finalized.

Both parties lived in Germany at the time of the divorce; both had counsel and participated in the process. His ex-wife has never made a payment toward the judgment and, shortly after the divorce, she suddenly fled Germany and moved to Seattle. He wants to know if you can help him collect the judgment now that his ex-wife resides in Washington. What can you do to help this caller?

In order to enforce a foreign order in Washington, it must first be formally registered with the court for enforcement.1 The other party then has an opportunity to object to this registration and require a court to determine the matter.

RCW ch. 6.40A defines a “foreign country” as a government other than the United States” with “foreign-country judgment” defined as the judgment of a court of a foreign country.2 While chapter 6.40A does not apply to “a judgment for divorce, support or maintenance, or other judgment rendered in connection with domestic relations,”3 the statute’s “savings clause” provides that it “does not prevent the recognition under principles of comity or otherwise of a foreign-
country judgment not within the scope of the chapter.”4

Comity is defined under Washington law as “a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another…. It is a nation’s expression of understanding which demonstrates due regard to both international duty and convenience and to the rights of persons protected by its own laws.”5 Comity thus “allows the courts of one jurisdiction to give effect to the laws of another jurisdiction out of deference and respect, considering the interests of each state.”6

For the principle of comity to apply, the foreign court must have had proper jurisdiction and there must have been:

opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting a trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the systems of laws under which it is sitting, or fraud in procuring the judgment.7

Orders will be recognized and given force “if it be found that they do not conflict with the local law, inflict an injustice on our own citizens or violate a policy of the state.”8 Comity will not apply if a foreign judgment is “so contrary to the policies of a state that enforcing it would seriously interfere with the state’s policies or laws” or is “prejudicial to the state’s interests.”9 However, the mere fact that the foreign laws are different from a state’s laws does not establish a violation of the state’s public policy.10

The doctrine of comity directs that Washington give full effect to foreign judgments except in extraordinary cases.11 When comity principles support recognition of a foreign judgment, that judgment will generally be given the same effect as a judgment of a sister state.12 While, as a matter of comity, a foreign divorce decree should generally be recognized in the United States, “recognizing a foreign divorce as terminating a marriage does not give a foreign divorce legal status equivalent to a decree of dissolution entered by a Washington court.13

The primary case involving comity principles in Washington is In the Matter of the Estate of Toland.14 In Toland, the husband and wife married in Japan. They subsequently parted and engaged in divorce litigation in Washington, Virginia and Japan. Ultimately their divorce was finalized in Japan.

The Japanese divorce was contested and the husband was “represented by several Japanese attorneys.” After the divorce, the now ex-wife committed suicide. Later, her mother filed for guardianship in Japan of the parties’ child. The ex-wife’s sister also filed a probate action in Washington to collect child support for the child. The estate then filed an action to register the Japanese divorce in Washington for enforcement of money judgments. The husband moved either to dismiss the case or for an order denying recognition of the Japanese divorce decree.

After significant litigation, the case reached the Washington Supreme Court for review. On review, the Court held that the Japanese divorce was a valid foreign judgment that satisfied the comity requirement. The Court further held that the guardianship proceeding, held approximately two years after the divorce was finalized, had no effect upon the application of comity principles to the matter.

In responding to the caller referenced above, the first step is to analyze whether the German divorce meets the standards of comity as outlined in Toland. In the example above, both parties had attorneys and participated in the German litigation. It is very unlikely that German law is “so contrary to the policies of a state that enforcing it would seriously interfere with the state’s policies or laws” or is “prejudicial to the state’s interests.”15 As such, Washington should grant comity to the German divorce after registration, and the order should be enforceable here.

What if the underlying divorce were from another country however, perhaps one with laws quite different from Washington’s? As just one example, the laws of Trinidad and Tobago do require at least one party to the marriage to be domiciled or “habitually resident” in the country,16 but also list extensive adultery and reconciliation provisions not found in Washington law.17 A party can also oppose a divorce in Trinidad and Tobago based upon “grave financial or other hardship.”18

Maintenance, child-related matters and property division are different.19 Trinidad and Tobago also has different statutory provisions for Muslim20 and Hindu21 divorce. The prudent practitioner would thus analyze the terms of the divorce and the law of the issuing country prior to making a comity analysis for enforcement in Washington.

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