Maberry v. Maberry, Tennessee Court of Appeals No. N1999-01322-COA-R3-CB, 11/30/99.
FOREIGN DIVORCE DECREE — COMITY — PROOF OF FOREIGN ORDER AND OF DUE PROCESS IN FOREIGN COUNTRY — RES JUDICATA.
Neither party had adequately proven a Japanese divorce decree in a Tennessee post-divorce proceeding, and so comity could not be granted to the decree, it was not res judicata, and neither party should rely on it in the Tennessee case.
A Japanese court granted a divorce but refused to make any disposition of husband’s U.S. military pension. The Japanese decree also did not deal with child support. The wife petitioned a Tennessee court for a pension division and the husband cross-petitioned for child support. The trial court dismissed the parties' petitions based on res judicata, but the appeals court reverses.
The appeals court also pointed out that either party in the future could seek to have the decree recognized or enforced if they could properly submit it and prove what it said. The court noted that there is a split of authority in other states on whether the Uniform Enforcement of Foreign Judgments Act applies to a foreign-country decree. Without saying one way or another whether the Act applied, it pointed out that registration of the decree under that Act would have let the trial judge determine what exactly the decree had covered, and whether the principles of due process had been observed sufficiently.
In Re Goode, Oregon Ct. App. No. A102769, 2/9/00, http://pub.bna.com/fl/102769.htm
DOMINICAN DIVORCES — EFFECT ON LATER MARRIAGE — PUBLIC POLICY — PARTIES DOMICILED IN FOREIGN COUNTRY — ESTOPPEL.
In this case, the wife had obtained a Dominican divorce from her first husband while both resided in their native Colombia. Later the same year she married her present husband. Six years later she got an Oregon divorce from the first husband and then married her current husband for a second time. Before the second marriage ceremony, they executed a pre-marital agreement. When they divorced six years after that, the husband attempted to enforce the pre-marital agreement. Under Oregon law, however, a pre-marital agreement must be before the marriage; it cannot be a mid-marital agreement. The wife argued that the parties were already married, husband argued that they were not because the Dominican divorce was invalid.
The Court of Appeals held that the Dominican divorce should be granted comity. There is a public policy in Oregon in favor of discouraging forum shopping by recognizing divorces only if at least one party was domiciled in the forum. However, this divorce did not violate public policy because neither party lived in the U.S. at the time. Husband also argued for judicial estoppel, since the Oregon courts, and the wife in asking for a second divorce from the first husband, both had relied on the fact that she was still married to the first husband in order to have the second divorce granted. However, the Court of Appeals said that the purpose of judicial estoppel would not be furthered by applying it in this way, because the wife was not seeking to defraud a court or "pervert justice," but only to avoid being a bigamist. Besides, since estoppel is an equitable doctrine, it would be inequitable to let the current husband denigrate the Dominican divorce when he had in fact "promoted and encouraged" it at the time. (Even though the main thing that was going on here was that the wife was trying to disavow a premarital agreement that she had signed on to and which the husband had relied on.)
As to the Dominican judgment's validity under Dominican law, the court noted that under that law one party at least has to be at the divorce hearing. The wife, who had been the plaintiff in that divorce, said that she had never been to the Dominican Republic, and that she did not believe that her then husband had been there on the date of the divorce or at any other time. However, the court noted that the divorce judgment said the husband "was temporarily in this city" and so decided that it could be inferred that he had been present at the hearing. It also noted that the judgment says, "all the formalities prescribed by law have been fulfilled." Without any testimony proving that the first husband had not been at the hearing and in spite of the proponent's own testimony to that effect, the court decided that the divorce was valid in the country where it was granted and thus eligible for comity.
Adoteye v. Adoteye, 527 SE2d 453, 32 Va. App. 221, 14 VLW 1350 (4/18/00)
DIVORCE — RESIDENCE AND DOMICILE — INTERNATIONAL-ORGANIZATION EMPLOYEES.
A foreign employee of an international organization who lives in Virginia on a G-4 non-immigration visa, a special kind of visa only for international organization employees, is not a bona fide resident of Virginia and thus cannot seek a divorce there, the Virginia Court of Appeals says. With the G-4 visa, her right to remain in the U.S. is completely conditional upon her employment by the organization. (There are many such employees in Northern Virginia, Maryland and D.C.)
The complainant said she kept her G-4 visa because it was tied to certain financial benefits her employer provided. She also was allowed to claim a total exemption from paying any state or federal taxes, and did so. In both cases, the court commented, “we respect her right to make this election.” But it “is inconsistent with intent to become a permanent, bona fide resident and domiciliary.”
The Complainant pointed out that “she has resided in Virginia since 1983, that she owns a home in Fairfax County, that her children were born in and live in Virginia and speak only English, that she has never returned to Ghana for longer than six weeks at a time, referring to these trips as ‘vacations,’ that she holds a Virginia driver's license, has bank accounts in Virginia, has registered automobiles in Virginia, submitted to the jurisdiction of the Fairfax County Juvenile and Domestic Relations District Court, owns no real property in Ghana, has never paid taxes in Ghana, and has stated her intention to remain indefinitely in Virginia.” But the court held that “these circumstances … are also consistent with a transitory sojourn in Virginia.”
Phillips v. Saratoga Harness Racing, Inc., No. 96-LV-1587, 26 FLR 1277 (NDNY 3/31/00)
HEALTH INSURANCE -- INVALID DOMINICAN DIVORCE -- COBRA --LIABILITY FOR GAP IN HEALTH INSURANCE COVERAGE THAT WAS NOT DISCLOSED TO INSURED SPOUSE OF EMPLOYEE.
A wife has no cause of action under COBRA or any other federal law against her husband's employer, which dropped her from his health insurance after he got a Dominican divorce, which a state court later declared void. The federal court agreed with the employer's argument that an invalid divorce decree is not a "qualifying event" under COBRA which obliged the company to give the wife notice of COBRA eligibility. She was still married to him, after all. The federal court commented that without a COBRA-triggering event, it did not even have subject matter jurisdiction to do anything.
The employer was not exactly a mere bystander in this case. The husband got a Dominican divorce and married his secretary, and told his employer about both of these things. The employer then gave him forms to give his first wife so that she could get a COBRA extension of her coverage. But wife never got those forms via her husband, and she incurred substantial medical bills, which she had assumed the insurance would cover. The court noted that there was a state court order for the husband to maintain the wife's health insurance, and so her remedy was against him, in state court.
