Recognition and Enforcement of Foreign Divorce Decrees

Quite simply, Illinois courts will not enforce, but will only recognize, a judgment of a foreign country which granted a divorce. Matters ancillary to the judgment itself are treated the same way. The “recognition” and “enforcement” of foreign judgments are related but distinct concepts. The “recognition” of a foreign judgment occurs when a United States court relies upon a foreign judicial decision to preclude litigation of a par- ticular claim, or factual dispute, on the ground that it has been previously litigated abroad, similar to our concepts of “res judicata and “collateral estoppel”. In contrast, the “enforcement” of a foreign judgment is typically sought by a plaintiff who has obtained a money judgment in foreign proceedings that the judgment debtor refuses to pay. Born, Gary B. with Westin, David, International Civil Litigation in United States

Courts, 1988, p. 562.

“Reciprocity” is the rule of law whereby a judgment of a foreign country will be given such effect in an American court as courts of that country would accord to an American judgment. Nichols, John F., Recognition and Enforcement: American Courts Look at Foreign Decrees, 9 Fam.Advoc. No. 4 (Spring 1987) p. 9. In Hilton v. Guvot, 159 U.S. 113, 16 S. Ct. 139 (1895), the Court held that a French judgment against an American citizen was only prima facie evidence in an action upon it in the federal courts, on the ground that by the law of France, our own judgments were reviewable on their merits. The holding in Hilton appears to be based on the desire to protect American nationals and to be limited to cases in which it is invoked by an American citizen. Bata v. Bata, 163 A.2d 493 (Del. 1960)

[noncitizen v. noncitizen] held: not entitled to invoke doctrine of reciprocity). Moreover, the rule in Hilton [requiring reciprocity) has been severely criticized by commentators in the conflict-of-laws field. See Beale, Conflict of Laws,_ par. 434.2 (“an anomaly in our law”); Goodrich on Conflict of Laws (3d ed.), par. 208 (dissenting opinion “well founded”). Nichols, Recognition and Enforcement:, 9 Fam.Advoc. No. 4 (Spring, 1987) p. 9. Illinois courts do not recognize the doctrine of reciprocity as a requirement before a foreign judgment can be enforced. Ingersoll Mill Mach. Co. v. Granger,‘631 F.Supp. 314, aff’d. 833 F.2d 680.

The United States has acceded to three international conventions relating to civil law, which are useful in dealing with support and custody issues. These are the 1961 Hague Convention on Abolishing the Requirement of Legalization for Public Docu- ments, which came into force in the U.S. in 1981; the 1965 Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil and Commercial Mattes, which came into force for the U.S. in 1969; and the 1961 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. DeHart, Gloria, F., Getting Support Over There, 9 Fam.Advoc. No. 4 (Spring 1987) p. 34. For copies of these conventions, see Martindale Hubbell Law Directory, Vol. VII or International Judicial Assistance, published by the International Law Institute (Washington, D.C.). Id.

There are a number of international treaties and conventions regarding the enforcement of support obligations when the debtor and creditor are in different jurisdictions. Among the most important are the United Nations Convention on the Recovery Abroad of Maintenance (New York, 1956), the 1958 Hague Convention Concerning the Recognition and Enforcement of Decisions Concerning Maintenance Toward Children, and the 1973 Hague Convention on the Recognition and Enforcement of Decisions Relative to Maintenance Obligations. (For a discussion and analysis of these treaties, see Cavers, International Enforcement of Family Support, 87 Colum.L.Rev. 994 (1957). The article also contains a description of URESA and the IV-D program. Id.

Although these conventions are in effect in many countries, the U.S. has not yet become a signatory to any of them. Both the American Bar Association and the National Child Support Enforcement Association have passed resolutions urging ratification of the 1956 United Nations Convention. Ratification would both be easy and useful because of the convention’s similarity to the Uniform Reciprocal Enforcement of Support Act (URESA) and its avoidance of recognition-of-judgment problems posed by countries’ differing bases of jurisdiction. Id. Because the federal government has ignored international enforcement problems, the states have developed their own solutions, using URESA as their guide. Id.

The primary impact of the Uniform Foreign Money Judgment Recognition Act (UFMJRA) was to reject Hilton v. Guvot, supra, by announcing to the world that reciprocity is not a requirement in the United States. However, the UFMJRA excludes matrimonial or family matters by defining a “foreign” judgment as “any judgment of a foreign state [country] granting or denying recovery of a sum of money, other than “… a judgment for support in matrimonial or family law matters., Bang v. Park, 321 N.W.2d 831, 833, (Mich.App. 1982). Nichols, 9 Fam.Advoc. No. 4 (Spring, 1987), p. 9.

The rationale for the exclusionary language is that there did not seem to be the uniformity in matrimonial or family law judgments, decrees, or orders as there are in, e.g., commercial or business judgments. Wolff v. Wolff, 40 Md.App.168, 389 A.2d 413 (1978), aff’d. 285 Md. 185, 401 A.2d 479 (1979).

The United States is not a party to either of the conventions which would allow enforcement of a foreign divorce judgment- Hague Conventions on Recognition of Divorces and Legal Separations, and Recognition and Enforcement of Foreign Judgments. Barrett, International Unification of Private Law-Current Activities, 6 Int’l L.Rev. 675, 680-682 (1972).

The “full faith and credit” clause of the U.S. Constitution does not require an Illinois court to recognize or enforce a judgment of a foreign country. Under the doctrine of comity, a foreign country’s decrees will be recognized, not by reason of any obligation to recognize them, but upon considerations of utility and mutual convenience of nations, although recognition may be withheld for various reasons. Eager v. Hager, 1 III.App.3 1047, 274 N.E.2d 157.

Comity is a necessary outgrowth of our international system of politically and socioeconomically independent nation states. It is defined as “the recognition that one nation allows within its territory the legislative, executive, or judicial acts of another, having due regard both to international duty and convenience and to the rights of its own citizens or others protected by its laws.” 16 Am.jur.2d, Conflict of Laws, sec. 10, p. 27-29; Bank v. Park, 321 N.W.2d 831 (Mich.App. 1982) 834; West’s Courts Key No. 52, Nichols, 9 Fam.Advoc. No. 4 (Spring 1987), p. 9.

Ordinarily, Illinois courts will recognize and enforce the judgment of foreign country under principles of comity. See Baker v. Palmer, 83 Ill. 568 (1876); Truscon Steel Co. v. Biegler, 306 Ill.App. 180, 28 N.E.2d 623 (Ist Dist. 1940). Only comity can compel courts to act in a manner designed to advance the rule of law among and between nations. Nichols, 9 Fam.Advoc. No. 4 (Spring 1987), p. 10. However, an exception has been made for the enforcement of foreign alimony judgments. In Clubb v. Clubb, 402 Ill. 390, 84 N.E.2d 366 (1949), the Supreme Court of Illinois refused to enforce an English judgment granting a wife a divorce and alimony. The court drew a distinction between recognition and enforcement of a judgment of a foreign country:

The rule of comity between nations would justify our recognition of a decree of a foreign country, but we do not believe comity would require us to enforce a foreign decree for alimony where no law exists here granting power to our chancery courts for that purpose.…

There being no statute conferring specific authority on courts of equity to enforce decrees of a foreign country, we have considered whether or not under its general powers a court of equity might assume such jurisdiction. We have heretofore held that jurisdiction of courts of equity to determine divorce cases and all matters relating thereto is conferred only by statute, and these courts may exercise their powers in such matters within the limits of the jurisdiction conferred by the statute and not otherwise, as the jurisdiction depends solely upon the grant of the statute and not upon general equity powers.

If the court of equity in our State has no general powers over divorce cases and all matters relating thereto, and citizens of our State cannot procure relief in such matters unless statutory authority so permits, it would not be just for us through claimed comity or alleged general powers to allow enforcement by our equity courts, through civil contempt, of a decree of a foreign country for the payment of alimony to one of its subjects. In our opinion comity does not require us to go that far. 84 N.E.2d at 371. But see, Skilling v. Skillinq, 104 ill.App.3d 213 (1982) in which the foreign judgment for dissolution of marriage did not include any provisions for child support. The Skilling court allowed an original action in Illinois for child support under that foreign judgment because, “Without a method of enforcing or modifying the foreign decree in this State, we cannot grant recognition to the decree to the extent that it precludes all possible action in this State. When the welfare of a child is at stake, we believe the doctrine of comity does not require us to leave a child within this State to the protection of a foreign nation.” Id. Also see, Zaluendo v. Zaluendo, 45 Ill.App.3d 849, 360 N.E.2d 386 (1977). See this author’s article, Child Support Transcends International Boundaries, General Practice newsletter, Ill.State Bar Association.

In January, 1996, our Appellate Court took a sharp turn in Marriage of Snyder, 269 Ill.App.3d 848, 646 N.E.2d 1263, First District, Fifth Division, and held that an original action for child support on a foreign divorce decree required a statutory basis. The court reasoned that the three cases which served as a basis for jurisdiction in Skilling and Zaluendo (see In re Custody of Cannon, 268 Ill.App.3d 937, 645 N.E.2d 348 (lst Dist., 1994); In re Estates of Herrod, 254 Ill.App.3d 1061, 1064-5, 626 N.E.2d 1334 (1993); and People ex rel. Lehman v. Lehman, 34 111.2d 286, 291, 215 N.E.2d 806 (1966)) had all restricted the use of plenary jurisdiction to child custody matters.

Dissolution of marriage and collateral matters such as child support are entirely statutory in origin and nature. In re Marriage of Henry, 156 Ill.2d 541, 544, 622 N.E.2d 1170 (1993); Struckoff v. Struckoff, 76 Ill.2d 53, 389 N.E.2d 1170 (1979); In re Marriage of Milliken, 199 Ill.App.3d 813, 817, 557 N.E.2d 591 (1990). The Snyder court, therefore, held that, to the extent that Zaluendo and Skilling hold that plenary jurisdiction may apply to child support matters, those two cases are inconsistent with Henrv, Milliken, and Struckoff. While Skilling argued that there is no presumption that the statutory means is intended to be exclusive (Skilling, 104 III.App.3d at 221, the Illinois Supreme Court in Henry and Struckoff has established that child support is one area in which statutory exclusivity applies. Snyder, 269 III.App.3d at 850.

This neatly sums up the pending law on collateral issues such as child support, alimony, and child custody in a dissolution of marriage case. But, what if the parties entered into their agreement by stipulation? Isn’t it appropriate that the judgment should be enforceable in Illinois as a contract under those same principles of comity that have previously denied relief? I.L.C.S. 5/502(e) tells me that, “Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.”

One practical problem in commencing litigation in Illinois is whether the parties had already stipulated to a choice of forum in which disputes would be settled. If that choice of forum precludes enforcement in Illinois, there is then an inquiry as to whether you have practical denial of your day in court in the choice-of-forum court, whether you can obtain effective relief in the chosen forum, and whether that forum should be avoided because of fraud, duress, etc. M/S Bremen v. Zapata Off- Shore Co., 407 U.S.1, 92 S.Ct. 1907(1972). The parties choice of forum will be upheld in the U.S. courts regardless of whether it is reasonable. Sam Reisfeld and Son Import Co. v. S.A. Eteco, 530 F.2d 679 (5th Cir). 1976).

If Illinois is an appropriate forum, application of the doctrine of estoppel, the role of domicile and the issue of jurisdiction have proven to be judicial alternatives to direct recognition of a bilateral foreign divorce between American resident domiciliaries. Glassman, Stephen C., The Tangled International Divorce Web, 9 Fam.Advos. No. 4 (Spring 1987), p. 4. The doctrine as it pertains to foreign divorce decrees is defined in the Restatement, Conflict of Laws, sec. 112 and is quoted with appropriate ancillary citations in Rosen v. Sitner. 418 A.2d 490, 492 . 1980) . Id. See also: 24 Am. Jur.2d Divorce and Separation sec. 971 and 972; 27B C.J.S. Divorce secs. 364-366. Also, see 735 ILCS 5/2-209(7), Act submitting to jurisdiction-Process, “The making or performance of any contract or promise substantially connected with this State;”.

A contract is an agreement between two or more to do or not to do a particular thing. It is an agreement or covenant between two or more persons in which each binds himself to do or refrain from doing some act, and each acquires a right to what the other promises. Samuel G. Kling, The Legal Dictionary, p. 91.

“The broad principle-agreements must be kept-is universally accepted. Indeed, it would be difficult to imagine a legal system of a civilized country that did not begin with this as its bedrock foundation.” Arthur Larson, When Nations Disagree, A Handbook on Peace Through La , p. 39. “…If the general principles accepted by major legal systems in the law of contracts contain an objective standard by which to judge when an agreement may be deemed ended, it would be reasonable to confront any country with this principle and insist that it be respected. Id at 40.. The same principle would extend to judging when an agreement has been breached.

“…actions on…, written contracts, . . . , shall be commenced within 10 years next after the cause of action accrued; but if any payment or new promise to pay has been made, in writing,…, within or after the period of ten years, then an action may be commenced thereon at any time within 10 years after the time of such payment or promise to pay.” 735 ILCS 5/13-206. But, an action brought on a foreign judgment is governed by provisions contained in Sec. 13-205, which bar in 5 years “all civil actions not otherwise provided for”, and not by provisions now contained in 13-206 which bar in 10 years “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing.” Ambler v. Whipple, 139 Ill. 311, 28 N.E. 841 (1891).

A cause of action for breach of contract normally accrues on the date of the breach of duty. Pratt v. Sears Roebuck & Co., 71 Ill.App.3d 825, 390 N.E.2d 243 (1981). A promise of payment on a money judgment is no different that a contractual promise incorporated in a stipulated divorce judgment.

In Trucson Steel Company of Canada, Ltd. v. Biegler (cited above), plaintiff brought an action on a judgment for $1,315.85 obtained by him against defendant in the Supreme Court, a court of general jurisdiction, in Ontario, Canada. The defendant subsequently had promised twice to pay the amount due from him. Plaintiff filed suit in 1938, which was more than five years after the judgment had been entered, but less than five years after the two promises of payment had been made.

That case was pending in 1933 when Sec. 15, ch. 83, I.R.S. 1939 (Jones III.Stats.Ann. 107.275) stated, “Actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or person, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” The law is stated in the same language today in 735 ILCS 5/13-205. An action based upon a judgment rendered in another state must be brought within five years. Schemmel v. Cooksley, 256 Ill. 412, and such action is a “civil action” within the meaning of sec. 15. Id. at 182. “And by the rule of comity, the same force and effect is given to judgments of foreign countries as is given to the judgments of sister States.” Baker v. Palmer, 83 Ill. 568, Roth v. Roth, 104 Il. 35. It is also the law that a promise of a debtor to his creditor that he will pay the debt takes the case out of the 5-year Statute of Limitations. Abdill v. Abdill, 292 Ill. 231- 234.

In Abdill, the defendant cited Ludwig v. Huck, 45 Ill.App.651 and Brammel v. Wolf, 173 Ill.App. 156, for the proposition that, “The Statute of Limitations applying to foreign judgments is not tolled by an oral promise of payment.” Id. “The original indebtedness of appellants to appellee was merged in the two judgments sued on in Ludwig; the original causes of action were discharged by these judgments and no contract or debt remained which could be made the subject-matter of a new promise to pay.” Richardson v. Aiken, 84 Ill. 221; Wayman v. Cochrane, 35 Ill. 151; Boynton v. Ball, 105 Ill. 627; Mount v. Scholes, 120 Ill. 394. The Trucson court found that none of these last four cases sustained the rule earlier announced in the quotation just made. Trucson at 183. The Trucson holding paved the way for the Uniform Foreign Money-Judgments Recognition Act.

That court left open the question whether the Appellate Court in Ludwig was right in stating that after the judgment there was no contract, so that there was no Statute of Limitations on a purely contract matter with an oral promise to pay.

The case law that is available to us will continue to yield a myriad of results, until such time as an international treaty is enacted in the area of family law recognition and enforcement of judgments, decrees and orders. Hopefully, the foreign decree that you may someday find yourself working with will have been drafted very specifically from both a procedural and a substantive standpoint so that the United States court reviewing the decree will see that due process has been followed.

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