Law Office of John S. Palmer Attorney at Law

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Enforcing Foreign Decrees

Posted Thursday, July 31, 2014 by John S. Palmer

The Washington Supreme Court has found a Japanese divorce decree to be a valid foreign judgment under the common law doctrine of comity, which gives courts 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 ruling in Estate of Toland (decided July 10, 2014) involved a Washington man who married a Japanese woman; they had a child in 2002, who has never lived outside Japan. The couple were separated in 2003 and divorced in 2005. The mother died in 2007 and in 2008 the maternal grandmother was appointed as the child’s guardian in a Japanese guardianship proceeding.

The Washington litigation involves an effort by the mother’s estate to collect child support and other sums owed by the father under the Japanese divorce decree. In its 2012 ruling (which I summarized here) the Court of Appeals upheld a trial court decision not to enforce the divorce decree primarily because the Japanese guardianship proceeding, of which the father had no notice or opportunity to participate, violated both his due process rights and his rights as the surviving parent.

The Supreme Court disagreed and held that the divorce decree should be recognized as a valid foreign judgment. The court found that the decree was entitled to recognition under the comity doctrine because the father “had notice of the divorce proceedings, was a party to the litigation, was represented by a Japanese firm familiar with Japanese divorce law, and had the assistance of four attorneys.” Unlike the lower courts, the Supreme Court found that the guardianship was an entirely separate proceeding, unrelated to the divorce and initiated after it became final, and therefore had no bearing on the issue of comity and its application to the divorce decree.

The Supreme Court also rejected the father’s argument that the decree should not be enforced here because it generally could not be enforced in Japan; the court noted that while it appears that in Japan child support is “generally voluntary and family court orders are widely recognized as unenforceable,” it went on to say that “there is a distinction to be drawn between a judgment that suffers some defect that makes it unenforceable in the rendering country and the claim here that mechanisms are not in place for enforcement…the Japanese decree is valid and states a legally cognizable judgment for child support. Under the specific facts here, we will not refuse comity on the ground that [the child’s Japanese guardian] might be unable to enforce the decree in Japan.”

Finally, although the Japanese decree included an award of damages to the mother for psychological abuse, which would not have been available to her under Washington’s no-fault divorce laws, the court said this did “not render the decree unfair or so antithetical to our law and policy as to preclude the decree’s recognition as a matter of comity.”

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