Chapter 38 COMITY AND BILATERAL FOREIGN DIVORCE JUDGMENTS
Jurisdiction | New York |
Chapter Thirty-Eight
Comity and Bilateral Foreign Divorce Judgments
I. Comity and Collateral Attacks On Bilateral Foreign Divorce Judgments
Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States.6162 Comity should be extended to uphold the validity of a foreign divorce decree, including any agreement which may have been incorporated therein, absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York.6163
In Hilton v. Guyot,6164 the U.S. Supreme Court explained the meaning of "comity":
"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. 6165
In Gotlib v. Ratsutsky,6166 the Court of Appeals6167 elaborated that an ordered sense of respect and tolerance for the adjudications of foreign nations, paralleling that commanded among the states by the Full Faith and Credit Clause is the driving force behind the principle of comity, that
a departure from settled comity principles can be justified only as a rare exception. . . . Some evidentiary basis to support the proposition that the particular divorce decree of the foreign country was the product of individualized fraud or coercion or oppression or rested on proximately related public policies fundamentally offensive and inimical to those of this State must be demonstrated. 6168
A divorce granted by a foreign country will be afforded comity6169 in New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties and residency, rather than domicile, and was established even by a statutory "brief contact" through the appearance of one of the parties.6170 It is a general rule of law that a contract entered into in another state or country, if valid according to the law of that place, is valid everywhere.6171 Accordingly, under the doctrine of comity, New York will generally also accord recognition to the terms and provisions of any agreements incorporated in a bilateral foreign divorce. These recognized foreign judgments are thereafter immune from collateral attack in New York by a party who properly appeared in the foreign divorce action, absent some showing of fraud or a violation of a strong public policy of the state.6172 The agreements are similarly immune from challenges under the doctrine of comity, because such challenges would essentially amount to forbidden collateral attacks on foreign judgments.6173
The parties, in Badawi v. Alesawy,6174 were married in New York in a civil ceremony and thereafter in New York in a religious Islamic ceremony at which time they signed a mahr agreement, requiring the defendant to make an advance payment to the plaintiff of $5,000 and, in the event of divorce, a deferred dowery payment of $250,000. The mahr was also signed by two witnesses and the Imam.
While the parties were living in the United Arab Emirates, the plaintiff obtained a judgment of divorce awarding her $250,000 pursuant to the mahr. The plaintiff thereafter commenced an action for a judgment declaring the foreign judgment of divorce valid and enforceable in New York. Under the circumstances, the Appellate Division affirmed the recognition of the branch of the foreign judgment of divorce that incorporated the mahr under the principles of comity, as no strong public policy of New York was violated thereby.
The principle appears to be well established that a collateral attack on the underlying separation agreement is permissible in this state if the law of the jurisdiction rendering the judgment would allow an attack on its own judgment on the grounds alleged in the New York action.6175 Without first overturning the validity of the foreign divorce decree, a party may not collaterally attack the divorce decree by challenging the provisions of the separation agreement incorporated therein.6176
In McFarland v. McFarland,6177 the former wife, alleging fraud and duress, sought to invalidate the separation agreement which had been incorporated but not merged into a bilateral Dominican divorce. She alleged understatements and misrepresentations of the husband's financial interests. The foregoing notwithstanding, she did not contest the jurisdiction of the Dominican court or even dispute the validity of the divorce judgment itself. The lower court found no basis for departing from the general rule governing New York's willingness to accord comity to foreign judgments and held that the Dominican divorce judgment precluded further litigation concerning the validity of the incorporated separation agreement. The Appellate Division affirmed. The Court of Appeals (citing Greschler) concluded that even if the allegations of fraud and duress were technically sufficient to support a claim of rescission, those allegations did not rise to the level of gross inequity that might implicate New York's public policy, and, thus, there was no basis for a contention that recognition of the Dominican divorce judgment or of the incorporated separation agreement would do violence to some strong public policy of this state.
II. Intrinsic and Extrinsic Fraud
Vacatur of an agreement incorporated in a valid bilateral foreign divorce judgment is played out in a different arena involving a different criteria. Absence of fraud in the procurement is otherwise known as a collateral attack.6178 The pivotal focus is the distinction between intrinsic fraud versus extrinsic fraud.6179 Industrial Development Bank of Israel Ltd. v. Bier6180 explained it as follows:
Intrinsic fraud is fraud which goes to the existence of a cause of action, and is held to be no defense. The American courts hold that a foreign judgment cannot be attacked on the ground that it was procured by false testimony. . . . The fraud which will be available to a [party] in his attack upon a foreign judgment, in the main, is fraud which has deprived him of the opportunity to make a full and fair defense. There are many varieties of such fraud. Thus, where the defendant failed to present his case because the plaintiff agreed to drop the suit or to compromise the case or notified the defendant that the proceeding had been dismissed, or by any other agreement or promise lulled the defendant into a false security, the judgment may be attacked by the defendant. . . . Thus extrinsic fraud "must be in some matter other than the issue in controversy in the action." 6181
In sum, if intrinsic fraud lies at the heart of the dispute, such as a willful and fraudulent misrepresentation of a party's net worth, it may not later be challenged in New York on that basis alone absent evidence of fraud in the procurement, extrinsic evidence.6182
A. Fickling v. Fickling
In Fickling v. Fickling,6183 the Appellate Division rejected an appeal to vacate an Australian child support order, obtained on default, because the father failed to establish extrinsic fraud. The facts demonstrated that the wife made no representations which would have caused the father to think that she would not move forward with the trial while negotiations remained ongoing.
B. Fraguela v. Fraguela
In Fraguela v. Fraguela,6184 the Appellate Division reversed the trial court's finding that the Puerto Rican divorce was valid because, although the Puerto Rican judicial proceedings were, under federal...
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