[Source: Los Angeles Lawyer Magazine]
The Long Arm of Family Law:
California’s adoption of several uniform statutes has enhanced the enforceability of foreign family law orders
By Peter M. Walzer and Laurel Brauer
Reprinted with permission of Los Angeles Lawyer magazine
People from every country come to California to pursue their dreams and to escape financial and personal problems. Sometimes, they bring along the baggage of unsatisfied obligations for support, unresolved child custody disputes, and unpaid property settlements. Ex-spouses and lovers follow the scofflaws here with foreign court orders to collect what is owed. The challenge for the California lawyer representing innocent spouses is to secure the enforcement of a foreign court order issued under a court system with different rules, procedures, and standards.
Before California law can be utilized to enforce foreign divorce judgments, the foreign court order must be deemed valid by a California court and recognized as a California order-a process that encompasses a variety of procedures.
The full faith and credit clause of the U.S. Constitution prescribes that a state must recognize the public acts, records, and judicial proceedings of every other state. However, this mandate does not apply to the decrees of foreign countries. Even without the assurance of the full faith and credit clause, state courts may give recognition to the judgment of a foreign nation in accordance with the comity doctrine, which holds that, as a courtesy, a court may recognize a foreign court order-but is not compelled to do so.
The extension or denial of comity is discretionary, with review based on an abuse-of-discretion standard that allows the trial court considerable latitude in its decisions. Thus the comity doctrine, while available, is not a dependable remedy.
As a result of the comity doctrine’s unreliability, business and government agencies have lobbied successfully for legislation to ensure that state courts recognize foreign support orders, money judgments, and custody decrees in the same manner as they would recognize the judgments of other states.
The National Conference of Commissioners on Uniform State Laws drafted statutes to serve this purpose, including the Uniform Child Custody Jurisdiction Act (UCCJA), the Uniform Interstate Family Support Act (UIFSA), and the Uniform Foreign Money Judgments Recognition Act (UFMJRA). The UCCJA is primarily designed to enforce custody decrees, and UIFSA enforces support orders6 between the states, but they each include provisions that a1low for the recognition of foreign country court orders.
The UFMJRN specifically ensures that money judgments from other countries will be recognized by California courts. The uniform statutes cover most orders in a divorce decree-custody orders, support orders, orders for the payment of money to equalize the division of marital property, and orders for attorney’s fees.
The uniform laws relating to support (UIFSA) and custody (the UCCJA) permit the registration of foreign court orders, and an order becomes a California court order at the time of registration. In Los Angeles County, the Los Angeles Superior Court Family Law Department has jurisdiction to resolve disputes regarding the registration and enforcement of these orders.
However, obtaining recognition of orders for the payment of nonsupport foreign money judgments under the UFMJRA requires the filing of a complaint to establish the judgment in superior court. The Los Angeles Superior Court Civil Department is the forum for the resolution of jurisdiction and enforcement issues raised under the UFMJRAin Los Angeles County, even though they may arise out of a family law judgment.
Foreign orders for the division of California real property are not covered by any uniform law. The comity doctrine is the only recourse in obtaining recognition of a foreign court order in this instance. A party seeking to enforce a foreign court order to divide California real property can bring an action for partition in the superior court’s civil department Often a lis pendens is filed and recorded concurrently in the county where the property is located.
Whether the foreign order is recognized as a California order utilizing the common law comity doctrine or is being established pursuant to statute, the same constitutional jurisdictional prerequisites apply. The California court must first determine whether the foreign country had jurisdiction over the parties when the order was issued.
A divorce judgment is unique: under the doctrine of divisible divorce, the judgment contains separate court orders for support, custody, children, and property, and each order has different jurisdictional requirements.
For a court to recognize an order or enforce a divorce judgment it must have the requisite jurisdiction over the part of the decree for which enforcement is sought.
To properly terminate marital status, the court must possess subject matter jurisdiction over one of the parties. Child custody orders require subject matter jurisdiction over the children, orders for the payment of money require in personam jurisdiction, and orders regarding property division may require both in rem and in personam jurisdiction.
For example, If a child of divorcing parents has been legally living in California for six or more months at the date the divorce is filed, the California court will have subject matter jurisdiction to make custody orders. If the parent obligated to pay support for the child has been living in Scotland, and the California court does not have personal jurisdiction over that parent, a support proceeding must be commenced in Scotland.
Once the California court has determined that the foreign court had proper jurisdiction to issue the order, it must then determine if the defendant had notice and an opportunity to be heard in the foreign country. Only after these constitutional requirements are met and the order is recognized can it be enforced in California.
Foreign custody orders are enforced in California pursuant to Family Code Sections 3400 et seq. -California’s enactment of the Uniform Child Custody Jurisdiction Act. To register a foreign judgment, a certified copy of that judgment must be filed in the superior court of the county in which it is to be enforced, along with a translation of that judgment” and a declaration filed under the UCCJN providing information pertinent to the determination of jurisdiction. The declaration notifies the court where the child or children have lived in the last five years, if there is another action pending in another court, and if any other parties claim to have custody of the child.
Once the custody order is registered, it can be enforced with the same procedures required for the enforcement of any other California court order. Notice of the registration is not required, but when enforcement is sought on the registered order, the type of notice given will depend on the requested remedy.
For example, in cases involving charges of kidnapping, notice is often simply not required. A defendant may challenge the registration of a custody order by filing a motion to quash on the grounds that the foreign order is invalid. However, if the order was rendered in a country whose institutions are similar to those of other states and a “reasonable notice and opportunity to be heard was giyen to affected persons,”17 that order will be recognized by the California court.
In litigating the issue of similarity, a 1986 case, In re Marriage of Malak, is significant because the California appellate court recognized a court order from a country with laws different but analogous to state law.
The trial court in Malak had refused to recognize the child custody orders of the Sherei Sunnit Court of Beirut, Lebanon, after finding that the Islamic court issued an interim custody decree without notice and the “opportunity to be heard” and did not appear to hold the “best interest of the child a central consideration in its determination of custody.”
The appellate court reversed the trial court and found that Lebanese law did provide for reasonable notice and an opportunity to be heard and was not unlike California’s ex parte procedure authorized by former Civil Code Section 4600.1.
Further, the Malak court noted that the Lebanese court acted under statutory provisions substantially in accordance with U.S. uniform custody laws. The Lebanese court exercised its jurisdiction when Lebanon was home to both parties, had significant connections with the family, and was governed by laws that looked to the best interests of children.
When two or more countries issue valid and conflicting custody orders, priority is given to the party who files first.
In re Stephanie M., a 1994 decision, is illustrative: the California Supreme Court in that case held that a California dependency court properly refused to recognize the custody order of a Mexican court issued after the dependency court had issued its order terminating the parental rights of a Mexican couple living in Long Beach. The child’s grandmother, who lived in Mexico, and the child’s foster parents both requested appointment as guardians of the child.
After a thorough investigation and numerous hearings the trial court granted guardianship to the foster parents. Only after the California court entered its final order did a Mexican court issue a conflicting order granting the guardianship of the child to the grandmother.
The Mexican consulate wrote a letter advising the California court that there was a guardianship decree from a Mexican court and that pursuant to the Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes of April 23, 1963, the California court had to recognize and enforce the Mexican court order. The California dependency court refused to vacate its order and enforce the Mexican order.
The supreme court affirmed the trial court’s decision and held that although California courts may enforce foreign custody orders of other countries, they are not obligated to do so. The court found that the letter from the Mexican consulate informing the trial court that there was a guardianship decree from a Mexican court did not bind the California court if a prior California judgment terminated parental rights to the Mexican child.
Moreover, Stephanie M. held that the Multilateral Vienna Convention does not apply because that treaty recognizes the jurisdiction of a court in the receiving state to apply its laws to a foreign national and does not make Mexican consulate claimed it was not given). Thus the trial court was found to have properly applied the UCCJA, which states that international custody orders are to be enforced to the same extent that the order of another state would be enforced.
Another purpose of the UCCJA is to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” The California Family Code thus contains several weapons that attorneys can use as they move quickly and decisively to assist clients in the recovery of children who have already been unlawfully removed.
After registering a certified copy of a foreign custody order along with its translation, the attorney should file a warrant in lieu of a writ of habeas corpus to order the release of the child. The attorney can request the assistance of the district attorney in locating the child and the party detaining the child, and in bringing the child to a hearing.
The party detaining the child may attempt to persuade the court to conduct a hearing to determine the best interest of the child-an attempt that must be vigorously resisted. A hearing that follows the filing of a warrant in lieu of a writ of habeas corpus to order the release of a child should not be a forum to relitigate the issue of custody.
The only issues that should be addressed at such a hearing are whether a valid foreign court order exists, whether the order was made by an institution similar in nature to California courts, and whether all parties had notice and the opportunity to be heard in the foreign jurisdiction. The party seeking to enforce a foreign custody order can also request that the party violating the order pay the attorney’s fees, travel costs, and other expenses incurred by the enforcing party and his or her witnesses.
The party detaining the child is likely to argue that the California court should assert “emergency jurisdiction” under Family Code Section 3403(a) (3) because “the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent[,] which includes a child who has a parent who is (a] victim of domestic violence…. ”
The assertion of emergency jurisdiction should be reserved only for the purpose of ensuring that the child is safely returned to the country that issued the custody order-not for modifying the foreign country’s court order.
The Uniform Interstate Family Support Act was enacted into California law on January I, 1998, as a means to enforce more efficiently child and spousal support orders as well as paternity judgments rendered by other states and countries.
The prerequisite to enforcing another country’s orders under UIFSA is that the country of origin must have a “law or procedure substantially similar to UIFSA’s, or one of UIFSA’s precursors-the Uniform Reciprocal Enforcement of Support Act (URESA) and the Revised Uniform Reciprocal Enforcement of Support Act (RURESA).
UIFSA does not require reciprocity between the foreign country and California for a foreign support order to be enforced.
UIFSA may be used to collect a foreign support order as well as related costs and other forms of relief. UIFSA also provides for the recognition of foreign paternity judgments as well as orders from “administrative law agencies or a quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.” This definition of a quasi-judicial entity provides latitude for courts to enforce orders made in foreign countries with legal systems very different from California’s.
To register a foreign support order under UIFSA, the applicant must file two copies-one certified-of all orders to be registered (including a translation), along with any order modifications, with the applicable Judicial Council form or a letter to the court clerk requesting registration. On receipt of a request for registration, the court will file the order as a foreign judgment, regardless of the form of the request.
The request must specify the grounds for the enforcement remedy that is being sought An application for a determination of arrearages under the foreign court order or an actual writ of execution may be issued at the same time the order is registered or at a later date. A support order or income-withholding order is registered when the order is filed. Once registered, the foreign order may be enforced like any other support order issued by a California court.
Under URESA, the majority of support proceedings were relitigated in the local court even when the foreign court’s order was clear and unambiguous. Furthermore, defending parties often asserted the right to modify foreign orders despite the fact that the orders were already registered in California. This meant that several different support orders could be in effect in several states or countries, a problem rectified by UIFSA.
Under UIFSA, if a determination is made that the foreign court had proper jurisdiction to issue the order in question, a California court may not modify it, with two exceptions: if neither party resides in the foreign country or if the parties agree in writing that the foreign court order can be modified in California.
When a support order or income-withholding order issued in another country is registered in California under UIFSA, the court clerk will send out a notice of the registration to the party who owes the support. The owing party will be informed via the notice that he or she has 20 days to contest the validity or enforcement of a registered order in California.
The party objecting to the registration may seek to vacate the registration, assert any defense to an allegation of noncompliance with the registered order, or move to contest the remedies being sought or the amount of any alleged arrearages. If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.
A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses.
- The issuing tribunal lacked personal jurisdiction over the contesting party.
- The order was obtained by fraud.
- The order has been vacated, suspended, or modified by a later order.
- The issuing tribunal has stayed the order pending appeal.
- There is a defense under California law to the remedy sought
- The owing party has made full or partial payment.
- The statute of limitation precludes enforcement of some or all of the arrearages.
Refusal to permit visitation cannot be used as a defense to support orders registered pursuant to UIFSA, despite the fact that there is conflicting California state law regarding this issue. When a paternity judgment of a foreign country is registered under UIFSA, nonparentage cannot be asserted as a defense to enforcement.
In a provision in UIFSA modeled after a similar section in the UCCJA, a court may contact the court of another state or country in writing, by telephone, or by other means to obtain information concerning the laws of that state or country and the legal effect of the tribunal’s proceedings and orders.
The law of the foreign country governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order as well as any discovery that must be conducted in the foreign country. California’s and conclusive judgment procedural, substantive, and choice-of-law rules are controlling in all other respects.
UIFSA provides a more streamlined method of enforcing wage assignment orders: they can be sent directly to the obligor’s employer, which will trigger wage withholding by the employer without the necessity of a hearing-unless the employee files an objection with the court. UIFSA does not require the registration of wage assignment orders.
The Uniform Foreign Money Judgments Recognition Act covers family law orders for the payment of money that is not spousal or child support. To be recognized by California courts, the UFMJRA requires the order to be conclusive and enforceable (even though an appeal may be pending or the order is subject to appeal).
The defendant may apply for a stay of enforcement if an appeal is pending or the defendant is entitled to and intends to appeal the judgment. The order, once recognized, is enforceable as though it were a judgment of another state. Unlike UIFSA, there is no expedited method of registration for foreign judgments under the UFMJRA, A complaint to establish a foreign country judgment-alleging the elements set forth in the UFMJRA-must be filed in California.
The UFMJRA requires establishing personal jurisdiction over the defendant before a foreign judgment can be recognized. Under the statute, the defendant’s domiciliary status in the foreign country at the time the matter was commenced satisfies the personal jurisdiction requirement; personal jurisdiction also can be obtained by personal service in the foreign country, a consent to service in the foreign country, and a defendant’s voluntary general appearance.
The UFMJRA contains several defenses to the recognition of a foreign court order:
- The judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.
- The foreign court did not have personal jurisdiction over the defendant
- The foreign court did not have jurisdiction over the subject matter.
- The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to mount a defense.
- The judgment was obtained by extrinsic fraud.
- The cause of action or defense on which the judgment was based is repugnant to the public policy of California.
- The judgment conflicts with another final and conclusive judgment.
- The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled in a manner other than by a proceeding in that court.
- The foreign court was a seriously inconvenient forum for the trial of the action (this defense applies only when jurisdiction is based solely on personal service).
THe UFMJRA provides substantial tools for aiding clients seeking to enforce foreign court orders, but the California legislature could bolster the law by adding a section- similar to provisions in UIFSA or Family Code Section 3416, which permits the filing of foreign custody orders-that would authorize the registration of certified family law money judgments.
With such an amendment to the UFMJRA, a certified copy of the foreign judgment could be filed in a California court with a family law case number, and any objections to the foreign court order’s validity could be addressed at the time enforcement procedures are commenced. Thus most foreign divorce orders-except those relating to real property and restraining orders-would be addressed in the family law department in an expedited manner.
The uniform statutes do not explain how to calculate the dollar amount of a judgment issued in a foreign currency. In 1988, the court in Pecajlor Construction, Inc. v. Landes71 offered guidance by holding that the enforcement of a foreign judgment rendered in a foreign currency requires the conversion of the judgment to American dollars using the exchange rate that was in effect at the time of the foreign judgment.
The lawyer enforcing a foreign judgment in California must use ingenuity in obtaining recognition of that judgment. While some orders in a judgment require registration, other orders in the same judgment require that a complaint be filed to establish the order as a California order. Despite the fact that several statutes address the diverse aspects of a divorce judgment, most orders will be recognized by California courts without having to rely on the comity doctrine.
As international commerce continues to expand and people immigrate to California in greater numbers, lawyers will need more efficient means of enforcing foreign court orders. The enforcement of foreign divorce judgments in California has seemed to inexorably require expensive civil litigation; with a few revisions to the current uniform statutes, it could be accomplished simply and cost effectively in the family law court.
Peter M. Walzer, top family law attorney, is a certified family law specialist practicing in Woodland Hills and a fellow of the Academy of Matrimonial Lawyers. Laurel Brauer is a family lawyer practicing in Century City.
For references 1-71, please see original PDF