W. K. West, Jr., Divorce Referee, of Shelby County, Tennessee, Appellant.
Supreme Court of Tennessee.
Feb. 13, 1978.
Plaintiff sought a declaratory judgment that a Dominican Republic divorce
decree was valid or, in the alternative, seeking a divorce. The answer
sought the same relief, but the divorce referee appeared in the action
to contest the validity of the Dominican Republic decree. The Equity Court,
Shelby County, Wil V. Doran, Chancellor, granted summary judgment for the
plaintiff in the declaratory judgment action, and the divorce referee perfected
a direct appeal to the Supreme Court. The Supreme Court, Fones, J., held
that: (1) where both parties asserted validity of the Dominican Republic
decree, and neither raised any question as to jurisdiction of the Dominican
Republic court over parties or subject matter and both continued to assert
that each was bound by the property settlement agreement, comity would
be granted to the divorce, and (2) the state was not as matter of law required
to grant comity to any foreign decree, but the decision to grant comity
in the given situation was purely a question of state law on which summary
judgment was appropriate.
Decree affirmed.
OPINION
FONES, Justice.
Appellant, Divorce Referee of Shelby County, appeals from a declaratory
judgment validating, "for reasons of equity and comity", a divorce
awarded by a court in the Dominican Republic.
On November 21, 1974, Eleanor Lentz Hyde was awarded a decree of divorce
by the Court of First Instance of the Judicial District of Santo Domingo,
Dominican Republic. She was represented by an attorney.
Joseph R. Hyde, III, was not personally present but was served constuctive notice publicly by a court appointed bailiff and not prejudiced because the decree was silent on property issues which can be addressed in the home domicile of the parties.
This fully satisfied the laws of the Dominican Republic with
respect to jurisdiction of divorce actions. The divorce was granted on
the ground of incompatibility of temperaments, making life together unbearable.
Both parties to the marriage are residents of Memphis, and were residents
of Memphis at the time of the divorce.
Joseph Hyde filed this suit in the Chancery Court of Shelby County on November
4, 1976, seeking a declaratory judgment that the Dominican Republic decree
was valid, or in the alternative, seeking a divorce. He alleged that prior
to October, 1974, the parties were preparing to file suit against each
other in the courts of Shelby County, Tennessee, but they effected an agreement
settling their property rights and providing for the support of their minor
child; that they were then confronted by the prospect of an extensive delay
before a divorce could be obtained due to the backlog of divorce cases
in Shelby County. Being desirous of returning to the status of unmarried
people, after an investigation, submitted to the jurisdiction
of the Dominican Republic court and obtained a no fault divorce, believed
in good faith to be valid.
Eleanor Lentz Hyde answered, admitting those allegations and insisting
that comity be granted and the foreign decree, but in the alternative,
also counterclaiming for divorce. Thus, in the Tennessee courts, both parties
assert the validity of the foreign decree, neither raises any question
as to the jurisdiction of the Dominican Republic court over the parties
or the subject matter for the purpose of the 1974 proceeding, and they
continue to assert that each is bound by the 1974 property settlement agreement.
The Divorce Referee appeared in the action to contest the validity of the
Dominican Republic decree. The Chancellor granted summary judgment for
plaintiff in the declaratory judgment action, and the Divorce Referee perfected
a direct appeal to this Court.
Because the decree for which recognition is sought is that of a foreign
nation, the sole question here is whether Tennessee will grant comity to
the divorce. We have not found any case in which Tennessee courts have
considered the question of what effect, should be given a judicial decree
from a foreign nation, but the courts of this state have recognized the
doctrine of comity in cases where the rights of parties under the laws
of other states were at issue, and recognition was not obligatory under
the Full Faith and Credit Clause. See Paper Products Co. v. Doggrell, 195
Tenn. 581, 261 S.W.2d 127 (1953); Phillips v. Johns-ManvillSales Corp.,
183 Tenn. 266, 191 S.W.2d 554 (1946); Finley v. Brown, 122 Tenn. 316, 123
S.W. 359 (1909); Lewis v. Woodfolk, 61 Tenn. 25 (1872); Lisenbee v. Holt,
33 Tenn. 42 (1853).
The rule of comity to be gleaned from these cases is that, where the law
of another jurisdiction is applicable, Tennessee will enforce the substantive
rights which litigants have under the laws of the other jurisdiction if
such rights are not contrary to the policy of Tennessee. Id.
Resting as it does on the non-obligatory discretion of the forum, comity
defies both precise definition and uniform rules of practice. The oft-cited
case of Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895),
which contains a thorough examination of the basic principles of comity,
defines it as follows:
" 'Comity,' in the legal sense, is neither a matter of absolute obligation
on the one hand, nor of mere courtesy and good will upon the other. But
it is the recognition which one nation allows within its territory to the
legislative, executive, or judicial acts of another nation, having due
regard both to international duty and convenience, and to the rights of
its own citizens, or of other persons who are under the protection of its
laws.
(S)peaking of the difficulty of applying the positive rules laid down by
the Continental jurists, . . . (Mr. Justice Story) says that 'there is
indeed, great truth' in these remarks of Mr. Justice Porter, speaking for
the supreme court of Louisiana: 'They have attempted to go too far, to
define and fix that which cannot, in the nature of things, be defined and
fixed. They seem to have forgotten that they wrote on a question which
touched the comity of nations, and that that comity is, and ever must be,
uncertain; that it must necessarily depend on a variety of circumstances
which cannot be reduced to any certain rule; that no nation will suffer
the laws of another to interfere with her own to the injury of her citizens'
that whether they do or not must depend on the condition of the country
in which the foreign law is sought to be enforced, the particular nature
of her legislation, her policy, and the character of her institutions;
that in the conflict of laws it must often be a matter of doubt which should
prevail . . . ' " (citation omitted). 159 U.S. at 163-165, 16 S.Ct.
at 143, 40 L.Ed. at 108-09 .
Thus, comity is a discretionary doctrine and may be granted or withheld
depending on the particular facts, laws and policies present in an individual
case.
In this case, the public policy of this state as reflected by its grounds
and jurisdictional requirements for divorce are the issues to be examined
in determining the propriety of granting comity.
The majority of states do not grant comity to divorces rendered in foreign
jurisdictions where neither spouse was actually domiciled, even where both
parties voluntarily submitted to the jurisdiction of the rendering court.
See Annotation, 13 A.L.R.3d 1419 (1967).
New York, on the other hand, recognizes foreign divorce decrees valid under
the laws of the nation rendering them even though neither party was domiciled therein the Anglo-American legal
sense, and the grounds on which the foreign divorce was granted were not
recognized in New York. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d
86, 209 N.E.2d 709 (1965). Granting comity in the instant case will not
require that we go as far from the majority rule as the New York courts
have gone.
The public policy of a state is to be found in its constitution, its statutes,
and the decisions of its courts. Primarily, it is for the legislature to
determine the public policy of the state, and if there is a statute that
addresses the subject in question, the policy reflected therein must prevail.
United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 17 S.Ct. 540,
41 L.Ed. 1007 (1897); Thome v. Macken, 58 Cal.App.2d 76, 136 P.2d 116 (1943);
see Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 51 S.Ct.
476, 75 L.Ed. 1112 (1931).
The Tennessee legislature has authorized the granting of divorces on the
ground of irreconcilable differences if the parties have, by written agreement,
made provisions for the custody and maintenance of any children of the
marriage and an equitable settlement of their property rights. Public Acts
1977, Chapter 107. The record in this case reflects compliance with these
conditions and the incorporation of the settlement agreement of October
31, 1974, into the decree of divorce. Appellant suggests no distinction
between the ground of irreconcilable differences and that of incompatibility
of temperaments making life together unbearable, and in our opinion they
are substantially equivalent. Thus, the grounds upon which the Dominican
Republic decree was awarded cannot be said to be offensive to the public
policy of Tennessee.
In addition to New York, a court in Connecticut has granted comity to a
Mexican divorce obtained under factual circumstances legally indistinguishable
from the instant case. On the question of the public policy considerations
arising from Connecticut's grounds for divorce as compared to that of Mexico,
a Superior Court of Connecticut said:
"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." Yoder v. Yoder, 31 Conn.Supp. 345,
330 A.2d 825, 827 (1974).
Appellant relies on the principle that a bona fide domicile in the divorce
forum is essential to confer jurisdiction of the subject matter.
We note that, in the proper case, the domiciliary requirement may serve
an important function; requiring domicile in the rendering jurisdiction
as a prerequisite to granting comity may effectively prevent a jurisdiction
with no legitimate interest in a particular controversy from fixing or
altering legal relationships against the laws and policies of the jurisdiction
which does have a legitimate interest in the parties, by virtue of their
domiciliary status.
We would, of course, deny comity to a foreign nation decree if its lack
of jurisdictional requirements equivalent to our own resulted in prejudice
to any citizens of this State. It is clear that in this case the difference
between Tennessee's jurisdictional requirements and those of the Dominican
Republic have in no sense prejudiced the immediate parties. To the contrary,
they contend that they have relied upon the validity of the Dominican Republic
decree since its rendition more than three (3) years ago and will be prejudiced
if we withhold comity.
Appellant contends that it is against public policy for the state as a
third party to the marriage contract to "surrender its sovereignty"
to a foreign nation whose laws evince no interest in maintaining the stability
of marriage as an institution.
We recently had occasion to recognize and affirm that public policy. There
is, however, another public policy consideration that is applicable in
the aftermath of a hopelessly broken marriage, that was enunciated by this
Court many years ago, a policy that also undergirds the legislative enactment
allowing divorce on the ground of irreconcilable differences. In Farrar
v. Farrar, 553 S.W.2d 741 (Tenn.1977), Mr. Justice Henry, writing for the
Court said:
"We fully recognize that considerations of public policy demand that
the institution of marriage be sheltered and safeguarded. But there is
an obverse side to the coin of public policy and consideration must be
given to the fact that society is illserved by a legally commanded continuance
of a marriage which exists in name only. We quote from the opinion of the
late Chief Justice Grafton Green, in Lingner v. Lingner, 165 Tenn. 525,
534, 56 S.W.2d 749, 752 (1933): As pointed out by another court, we must
take into consideration 'the mischiefs arising from turning out into the
world, in enforced celibacy, persons who are neither married nor unmarried.'
(Citation omitted.) Society is not interested in perpetuating a status
out of which no good can come and from which harm may result." 553
S.W.2d at 744, 745 .
Appellant argues that Hamm v. Hamm, 30 Tenn.App. 122, 204 S.W.2d 113 (1947),
is dispositive of this case because it held that a divorce granted by a
jurisdiction in which neither party is domiciled is invalid for lack of
subject matter jurisdiction. The case involved the validity of an Arkansas
divorce. Plaintiff had fraudulently alleged in the Arkansas action that
he was a domiciliary of Arkansas, and the Tennessee court held the divorce
void because, under Arkansas law, the granting court had no subject matter
jurisdiction. Thus, with respect to requiring domicile in the rendering
forum of at least one of the parties to a divorce, Hamm is silent.
The case at bar is readily distinguishable from Hamm because the Dominican
Republic divorce was granted in accord with that nation's domiciliary requirements
for subject matter jurisdiction.
Appellant argues that summary judgment was inappropriate in this case because
appellees were not entitled to judgment "as a matter of law"
as required by Rule 56.03, Tennessee Rules of Civil Procedure. This contention
is without merit. Throughout the proceedings in the trial court and in
this Court, there has been no hint that there was any issue as to any material
fact. While Tennessee is not, as a matter of law, required to grant comity
to any foreign decree, the decision to grant comity in a given situation
is nevertheless purely a question of Tennessee law.
The judgment of the Chancery Court of Shelby County declaring the decree
of the Court of First Instance, Santa Domingo, Dominican Republic, valid
and enforceable is affirmed. Costs are adjudged against Joseph R. Hyde,
III.
HENRY, C. J., and COOPER, BROCK and HARBISON, JJ., concur.
END OF DOCUMENT
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