Superior Court of Connecticut, Fairfield County, at Bridgeport.
March 4, 1974.
Former wife instituted an action to enforce child support provisions of
Mexican divorce decree by making that decree a judgment of Connecticut
court. The Superior Court, Fairfield County, Saden, J., held that in the
absence of some statutory authorization, Mexican divorce decree could not
be adopted and made a decree of Connecticut court; that Mexican divorce
decree which was granted on grounds not contrary to Connecticut public
policy and which was rendered by Mexican court which appeared to have jurisdiction
to enter its decree could be recognized in Connecticut under principles
of comity; and that a Connecticut court may vary child support provisions
in foreign divorce decree to serve best interest of child.
Demurrer to requested relief that Mexican decree be made a decree of Superior
Court sustained.
Arnold J. Bai, Bridgeport, for defendant.
SADEN, Judge.
This is an action instituted by the defendant's former wife individually
and as parent and natural guardian of Martha Yoder, one of their minor
children. In the interest of clarity, the parties will be referred to as
'husband' and 'wife.'
In 1968 the plantiff obtained a Mexican divorce in which was bifurcated and silent on the issue on marital assets, alimony and child suport. The validity of that divorce is not contested here.
An agreement concerning the respective rights and duties regarding support
and property was entered into shortly after the divorce and was made a
part of the Mexican decree. That agreement provided in pertinent part that
the husband would pay the medical expenses of his two minor children, Martha
and Elizabeth, and educational expenses if they attend college. The wife
alleges that Martha must attend a boarding school pursuant to doctor's
orders. The expense of this school, she contends, is a medical one, properly
payable by the husband, and not an educational one for which the husband
would not be responsible.
In a motion dated October 26, 1972, the wife sought permission to amend
her complaint by adding to the prayers for relief the following: "E.'
That the decree of divorce entered by the Republic of Mexico be made a
decree of this Court and enforced in the same manner as a final decree
of this Court.' The husband objected to this amendment on the ground, inter
alia, that there was no authority for allowing such relief in our courts.
The court nonetheless allowed the amendment. The husband now demurs to
this prayer for relief, contending that, while our courts may recognize
an alien decree, they cannot enforce it by making it a decree of the recognizing
court. In order to make an alien decree a decree of this court, it is contended,
there must be some statutory authority, which does not exist in Connecticut
although it does in other states. See Herczog v. Herczog, 186 Cal.App.2d
318, 323, 9 Cal.Rptr. 5 .
[2] The question has never been squarely presented to our Supreme Court.
This court is of the opinion that the reasoning in Gagnon v. Gagnon,23
Conn.Sup. 368, 183 A.2d 858 , is correct. Absent some statutory authorization,
a decree of an out-of-state tribunal cannot be made that of a Connecticut
court. Such a conclusion does not, however, bar the operation of the doctrine
of comity.
Whether and to what extent American courts should recognize and enforce
decrees of other nations has been a subject of voluminous concern to the
commentators. See, e.g., Yntema, 'The Enforcement of Foreign Judgments
in Anglo American Law,' 33 Mich.L.Rev. 1129; Peterson, 'Foreign Country
Judgments and the Second Restatement of Conflict of Laws,' 72 Colum.L.Rev.
220; Baade, 'Marriage and Divorce in American Conflicts Law: Governmental-
Interests Analysis and the Restatement (Second),' 72 Colum.L.Rev. 329;
von Mehren & Trautman, 'Recognition of Foreign Adjudications: A Survey
and a Suggested Approach,' 81 Harv.L.Rev. 1601.
Over the years, the approach of the Restatement (Second) of Conflict of
Laws appears to have prevailed. The Restatement's view is expressed in
ss 98 and 102. Section 98 provides: 'A valid judgment rendered in a foreign
nation after a fair trial in a contested proceeding will be recognized
in the United States so far as the immediate parties and the underlying
cause of action are concerned.' Comment c to that section cites Hilton
v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 , from which comes the
most often quoted list of requirements for 'comity.' The court said (p.
202, 16 S.Ct. p. 158 ) that 'where 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, and there is nothing to show either
prejudice in the court or in the system of laws under which it was sitting,
or fraud in procuring the judgment, or any other special reason why the
comity of this nation should not allow it full effect, the merits of the
case should not, in an action brought in this country upon the judgment,
be tried afresh, as on a new trial or an appeal, upon the mere assertion
of the party that the judgment was erroneous in law or in fact.'
This rule is entirely sensible and has many policy considerations to recommend
it. The commentators agree on several: (1) a desire to avoid the duplication
of effort and consequent waste involved in reconsidering a matter which
has been fully litigated; (2) a desire to protect the successful litigant
from harassment or evasion by the other party; (3) a policy against making
the availability of local enforcement the decisive element in the plaintiff's
choice of forum; and (4) an interest in fostering stability and unity in
an international society in which many aspects of life are multinational.
See von Mehren & Trautman, supra, p. 1603-4.
As the decree rendered by the Republic of Mexico in the instant case appears
to meet the requirements set down in Hilton v, Guyot, supra, it should
be recognized in this state.
As to enforcement of that decree, s 102, comment g, of the Restatement
(Second) of Conflict of Laws says: 'It can therefore be assumed that a
decree rendered in a foreign nation which orders or enjoins the doing of
an act will be enforced in this country provided that such enforcement
is necessary to effectuate the decree and will not impose an undue burden
upon the American court and provided further that in the view of the American
court the decree is consistent with fundamental principles of justice and
of good morals.' In other words, an internationally foreign decree will
be accorded treatment similar to a judgment of one of our sister states,
unless it is found to be repugnant to some basic public policy of the state.
No such repugnancy is found here. The divorce in the instant case was granted
on grounds which, at the time of the rendition of the decree, would not
have been considered proper under the Connecticut statute; that is, incompatibility
of temperaments. Today, however, is the point in time from which we should
evaluate the state's public policy regarding permissible grounds for divorce.
Since the passage of Public Act 73-373, these grounds have included the
irretrievable breakdown of the marriage. The grounds on which the Mexican
divorce was granted do not differ so greatly from our current divorce law
as to be considered repugnant.
There has been no claim made here that the Mexican court lacked jurisdiction
to enter the decree. Some writers argue, however, that the state of the
domicile of the parties has a paramount public interest in the status of
the marriage and should refuse to recognize Mexican divorces or to enforce
them since they are all too often procured on a divorce-mill basis. See
Baade, supra. The court in Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 73,
262 N.Y.S.2d 86, 90, 209 N.E.2d 709, 712, remarked on that point: '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. Nevada gets no closer to the real public
concern with the marriage than Chihuahua.'
At present, of course, the Connecticut court's real concern is the best
interests of the child. Apparently there is some medical problem, and the
plaintiff mother seeks to have the court determine if the Mexican decree
provides coverage for such treatment as the mother alleges is necessary,
even though it involves special schooling not mentioned in the decree.
This question, however, is beyond the scope of this memorandum.
In an analogous case, Adamsen v. Adamsen, 151 Conn. 172, 195 A.2d 418 ,
custody of a child was awarded to the plaintiff as part of a Norwegian
divorce decree. The defendant absconded from Norway to Connecticut with
the child while an appeal was pending. The plaintiff, in a habeas corpus
hearing, sought to have the Norwegian decree enforced here. The court said
(p. 178, 195 A.2d p. 421 ): 'The determination of the ultimate question
as to the person in whom the custody should be reposed requires the court
to exercise its discretion and to give paramount consideration to the welfare
of the child. Morrill v. Morrill, . . . (83 Conn. 479) 489, 77 A. (1,)
4, 5; Kelsey v. Green, 69 Conn. 291, 301, 37 A. 679 . . .. Where there
is an outstanding foreign judgment determining custody, the effect to be
accorded it as a matter of comity is the same whether it is the judgment
of a foreign nation or of a sister state.' See Litvaitis v. Litvaitis,
162 Conn. 540, 545, 295 A.2d 519 .
In Adamsen v. Adamsen, supra, 151 Conn. 180 , 195 A.2d 418 , the court
makes it quite clear that while its ultimate conclusion coincided with
that of the Norwegian court, the Connecticut hearing was an independent
adjudication made after a full trial rather than a mere enforcement of
the foreign judgment. In other words, had the Connecticut court seen fit
to do so in the exercise of its discretion, it had the power and right
to vary the custody provisions of the Norwegian decree.
Recognition of the Mexican decree in the instant case is a matter of comity
among nations. This principle does not, however, require Connecticut to
adopt an alien decree as its own, as the plaintiff requests in the relief
challenged by demurrer. It is sufficient that Connecticut by virtue of
the comity doctrine recognize the Mexican decree if it is not repugnant
to the public policy of this state, and enforce it at law and in equity,
including the remedy of contempt, if the circumstances warrant it. German
v. German, 122 Conn. 155, 164, 188 A. 429.
The demurrer to the requested relief that the Mexican decree be made a
decree of this court is sustained.
