Law Office of John S. Palmer Attorney at Law

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Foreign Divorce Decrees

Posted Monday, November 26, 2012 by John S. Palmer

A divorce decree or custody order entered in another country is not necessarily enforceable in Washington. Whether a court here will enforce a foreign court order depends to a great extent upon the circumstances under which the foreign order was obtained.

Under the common law doctrine of comity, Washington courts have the discretion to recognize orders entered in another country if the foreign proceeding was fair and resulted in what our judicial system would consider to be a valid judgment.

The comity doctrine has been around for many years; back in 1895, in the case of Hilton v. Guyot, the US Supreme Court stated that when evaluating the fairness of the foreign proceeding, a court should consider whether:

There has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the 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.

In the most recent published appellate opinion on the subject, Division II of the Court of Appeals cited this passage in upholding a trial court’s decision not to enforce a Japanese divorce decree. The case involved a Washington resident who married a Japanese woman during a naval tour of duty in Japan. The couple was divorced in Japan in 2006, and the wife died in 2007. Her sister initiated a probate in Pierce County seeking to collect money owed the estate by the husband under the Japanese divorce decree.

The Court of Appeals noted that a fair proceeding should result in a valid judgment, which “exists where (1) The court rendering judgment had jurisdiction; (2) notice and an opportunity to be heard were afforded to the parties affected; (3) the court is competent to render judgment; and (4) the party asking for enforcement complies with the rules of the state of enforcement to enter the judgment.”

Although the Court of Appeals found the initial divorce decree satisfied the comity doctrine, it found that subsequent proceedings did not, particularly a guardianship proceeding initiated after the wife’s death that awarded custody of the parties’ daughter to a Japanese grandparent.

The Court of Appeals found that the Japanese guardianship proceeding was unfair to the husband in three respects:

First, it violated his due process rights to notice of the proceeding and an opportunity to participate in it.

Second, Japanese law does not recognize the same custodial rights granted to a surviving biological parent by RCW 26.16.125, which states that “in the case of one parent’s death, the other parent shall come into full and complete control of the children and their estate.”

Third, while the Japanese court applied a “welfare of the child” standard which seems to be equivalent to Washington’s “best interest of the child” standard, its decision failed to recognize the husband’s fundamental Constitutional right to parent his child.

As a result of the decision, the deceased wife’s estate will not be able to use Washington courts to collect money owed the estate by the husband under the Japanese divorce decree.

Estate of Toland, Washington Court of Appeals Division II, consolidated docket nos. 41388-4-II and 42187-9-II, decided September 25, 2012.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056