Wolff v. Wolff

Melvin, J., delivered the opinion of the Court. * This appeal is from an order of the Circuit Court for Montgomery County, dated November 14, 1977, sustaining the preliminary objection of Frederick Wolff (appellee) to the Bill of Complaint to Enforce Foreign Decree filed by Catherine B. Wolff (appellant). The sole issue presented by this appeal is whether the lower court was correct in sustaining the preliminary objection. We think the lower court erred, and will reverse and remand with instructions that the preliminary objection be overruled. On August 4, 1977, appellant, a resident of London, England, filed in the Circuit Court for Montgomery County a Bill of Complaint to Enforce Foreign Decree, praying that the court assume jurisdiction and enforce the alimony provisions of an English divorce decree dated April 14, 1976.

On September 26, 1977, appellee, a resident of Montgomery County, Maryland, filed a preliminary objection to the bill of complaint on the grounds of lack of jurisdiction over the person and lack of jurisdiction over the subject matter. See Md. Rule 323 a. On November 14, 1977, the court found that it “lacks both subject matter and personal jurisdiction” and sustained the preliminary objection, dismissing the bill of ¹⁷⁰ complaint without leave to amend. Appellant noted a timely appeal to this Court.

We reiterate that the sole issue for our consideration is whether the lower court was correct in determining .that it lacked both subject matter and personal jurisdiction, and thus whether it was correct in sustaining appellee’s preliminary objection which raised those defenses. We specifically do not consider the sufficiency of the substance of the bill of complaint, see Md. Rule 345, or whether the relief prayed in the bill should ultimately be granted. . Turning first to the issue of whether the Circuit Court for Montgomery County had jurisdiction over appellee’s person, we think it clear that the court had such jurisdiction. Appellee was personally served with process in Maryland and there is no allegation that such service was procured by fraud, trickery or artifice.

These facts alone are sufficient to overcome a defense of lack of jurisdiction over the person. 1 In re Karol, 11 Md. App. 400 , 274 A. 2d 407 (1971). See also Altman v. Altman, 282 Md. 483 , 386 A. 2d 766 (1978). See generally 4 Wright & Miller, Federal Practice and Procedure, §§ 1061 et seq. (1969).

The real issue in this case is whether the Montgomery County Circuit Court had jurisdiction to grant the relief prayed in appellant’s bill of complaint; that is, whether the circuit court had jurisdiction over the subject matter. We turn, then, to that issue. In facing this issue, we look first to the statute upon which the lower court based its opinion that it lacked both personal and subject matter jurisdiction. Md. Ann. Code, Cts. & J. Proc.

Art., § 10-703 (1974) (entitled the “Uniform Foreign Money-Judgment Recognition Act”) provides that: “Except as provided in § 10-704, a foreign judgment meeting the requirements of § 10-702 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The ¹⁷¹ foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.” “Foreign judgment” is defined in § 10-701 (b) as “any judgment of a foreign state granting or denying recovery of a sum of money. It does not mean a judgment for taxes, fine, or penalty, ora judgment for support in matrimonial or family matters.” (Emphasis supplied). Because the bill of complaint in the instant case seeks enforcement of the alimony provisions of a foreign divorce decree, and because the Act specifically excludes from the definition of foreign judgments, judgments for support 2 in matrimonial or family matters, the lower court apparently concluded that the legislature intended that the court lack jurisdiction to recognize or enforce 3 the alimony provisions of a foreign divorce decree.

We do not believe the legislature intended such a result. In our view, because judgments for support in family or matrimonial matters are excluded from the definition of judgments to which the Act applies, the Act neither provides a jurisdictional basis for the recognition or enforcement of the alimony provisions of foreign divorce decrees, nor prevents such recognition or enforcement on a jurisdictional basis other than that provided for in the Act. This is so because the Uniform Foreign Money-Judgments Recognition Act is not a statute which purports to apply to all foreign money-judgments and then allow for recognition of only ¹⁷² some. Rather, the Act, by its definition of “foreign judgment”, applies only to certain types of foreign money-judgments, and does not apply to others.

To those foreign money-judgments which are excluded from the scope of the Act, the legislature simply has not spoken. We do not think this silence can be construed as evidencing an intent that such judgments never, under any circumstances, be accorded recognition. We note that § 10-707 of the Act provides that “[t]his subtitle does not prevent the recognition of a foreign judgment in situations not covered by this subtitle.” While this “saving clause” must be construed as applying only to foreign judgments as defined in the Act (i.e., not to judgments for support in family or matrimonial matters), it does evidence an intent that the Act be expansive rather than limiting in scope. Thus, in his article on the Uniform Foreign Money-Judgments Recognition Act, Professor A. Homburger of the State University of New York at Buffalo, Faculty of Law and Jurisprudence, states: “The act applies ‘to any foreign country judgment that is final and conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal.’ Judgments for taxes, fines and penalties, and for support in matrimonial or family matters are excluded from the scope of the Act.

However, the Act contains a general saving clause which provides that ‘[t]his Act does not prevent the recognition of a foreign judgment in situations not covered by this Act.’ Despite the obscure wording of the clause, its intent is clear. The draftsmen did not wish to fetter the requested court’s power to recognize judgments which fall outside the scope of the Act; nor did they wish to discourage the application of more liberal standards than those prescribed for judgments within its scope. As the Commissioner’s Prefatory Note to the Uniform Act states: ‘the Act makes clear that a court is privileged to give the judgment of the ¹⁷³ court greater effect than it is required to do by the provisions of the Act.’ Reading the saving clause broadly, it follows that New York, for example, could continue its current practice of recognizing foreign support decrees which are excluded from the scope of the Act; but it could also, in a proper case, give foreign judgments within the scope of the Act a more extensive res judicata effect than the Act requires.” A. Homburger, Recognition and Enforcement of Foreign Judgments. A New Yorker Reflects on Uniform Acts, 18 Am.

J. Comp. L. 367 , 370-71 (1970) (Emphasis in original). The non-limiting intent of the Act is also emphasized by Professor B. Kulger, Rutgers School of Law, in her article in the Buffalo Law Review: “Subsection 2 limits, rather than defines, the word ‘judgment’ as it is used in the act, so that recourse to existing law is necessary. The Act is restricted to certain ‘judgments’ which grant or deny recovery for . a sum of money to the exclusion of fines, taxes, penalties, or support in matrimonial or family matters.

Although New York does not enforce foreign fiscal and penal judgments, it has granted recognition and enforcement to foreign support decrees. The Act will not prevent continued recognition and enforcement of judgments not covered by its provisions.” B. Kulzer, Recognition of Foreign Country Judgments in New York: The Uniform Foreign Money Judgments Recognition Act, 18 Buffalo L. Rev. 1, 9 (1969). See also Ernster, Recognition and Enforcement of Foreign Money-Judgments: A Clear Position for New Jersey, 22 Rutgers L. Rev. 327 , 330 (1968). Our conclusion that the Uniform Foreign Money-Judgments Recognition Act does not prevent the courts of this State from recognizing or enforcing the alimony ¹⁷⁴ provisions of a foreign divorce decree is also fortified by the Commissioner’s Prefatory Note to the Act: “In most states of the Union, the law on recognition of judgments from foreign countries is not codified.

In a large number of civil law countries, grant of conclusive effect to money-judgments from foreign courts is made dependent upon reciprocity. Judgments rendered in the United States have in many instances been refused recognition abroad either because the foreign court was not satisifed that local judgments would be recognized in the American jurisdiction involved or because no certification of existence of reciprocity could be obtained from the foreign government in countries where existence of reciprocity must be certified to the courts by the government. Codification by a'state of its rules on the recognition of money-judgments rendered in a foreign court will make it more likely that judgments rendered in the state will be recognized abroad. “The Act states rules that have long been applied by the majority of courts in this country. In some respects the Act may not go as far as the decisions.

The Act makes clear that a court is privileged to give the judgment of the court of a foreign country greater effect than it is required to do by the provisions of the Act. In codifying what bases for assumption of personal jurisdiction will be recognized, which is an area of the law still in evolution, the Act adopts the policy of listing bases accepted generally today and preserving for the courts the right to recognize still other bases. Because the Act is not selective and applies to judgments from any foreign court, the Act states that judgments rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law shall neither be recognized nor enforced.” 13 Uniform Laws Annotated 269. ¹⁷⁵ Thus the Uniform Foreign Money-Judgments Recognition Act was intended to promote principles of international comity by assuring foreign nations that their judgments would, under certain well-defined circumstances, be given recognition by courts in states which have adopted the Uniform Act. As reciprocity is generally an important consideration in determining whether the courts of one country will recognize the judgments of the courts of another, see Hilton v. Guyot, 159 U. S. 113 (1895); C. Peterson, Foreign Country Judgments and the Second Restatement of Conflict of Laws, 72 Col.

L. Rev., 220, 233-36 (1972); J. Wigmore, The Execution of Foreign Judgments: A Study in the International Assimulation of Private Law, 21 111. L. Rev. 1, 7 (1926); E. Lorenzen, The Enforcement of American Judgments Abroad, 29 Yale L. J. 188 and 268 (1919-20), the certainty of recognition of those judgments provided for by the Act will hopefully facilitate recognition of similar United States’ judgments abroad. Note, Reciprocal Recognition of Foreign Country Money Judgments: The Canada-United States Example, 45 Fordham L. Rev. 1456 ,1489 n. 196 (1977). Note, The Uniform Money-Judgments Recognition Act, 64 Mich.

L. Rev. 308 , 316-17 (1965). The Act, therefore, delineates a minimum of foreign judgments which must be recognized in jurisdictions which have adopted the Act, and in no way constitutes a maximum limitation upon foreign judgments which may be given recognition apart from the Act. The reason for the exclusion of judgments for support in matrimonial or family matters from the scope of the Act is clear. The Uniform Foreign Money-Judgments Recognition Act, like any other uniform act, must necessarily be limited in scope to those areas upon which there is likely to be a consensus of opinion and hence uniformity.

The area of foreign support decrees is simply not an area which lends itself to uniformity of treatment — either in this country or abroad. As noted by Professor Homburger: “Foreign support decrees have been the subject of several international efforts toward uniformity, all of which have treated them separately from money ¹⁷⁶ judgments. The widely divergent national laws relating to marital decrees of all kinds — as contrasted to other civil and commercial matters as to which there is a reasonable degree of similarity — are reason enough for separate treatment. Homburger, supra at 13.

Given the divergent state and foreign laws relating to marital decrees of all kinds (including, of course, alimony), uniformity simply could not be achieved if the scope of the Act were enlarged to encompass such decrees. Rather than abandon any hope of uniformity, the drafters of the Act limited its scope to those foreign money-judgments as to which there already existed a reasonable degree of similarity of treatment. Thus, the exclusion of judgments for support in matrimonial or family matters from the scope of the Act evidences not an intent that these judgments never be recognized, but rather a pragmatic approach to a difficult problem: that of drafting a statute which is likely to be adopted, without substantial modification, in a large number of jurisdictions. There appears to be only one reported decision dealing with the effect of the Uniform Foreign Money-Judgments Recognition Act on the question of the jurisdiction of a state court to enforce the support provisions of a foreign divorce decree.

Appellee contends that this case, Nardi v. Segal, 90 Ill. App. 2d 432 , 234 N.E.2d 805 (1967), stands for the proposition that the Act prevents a state court from exercising jurisdiction to enforce the support provisions of a foreign decree. In our view, Aara&’holds only that the Act does not confer jurisdiction to enforce (either in equity or at law) the support provisions of foreign divorce decrees. 234 N.E.2d at 807-08 . At any rate, as noted infra, we decline to follow Nardi .

In sum, we hold that the Uniform Foreign Money-Judgments Recognition Act (Md. Ann. Code, Cts. & J. Proc. Art., §§ 10-701 through 10-709 (1974)) neither provides for the recognition or enforcement of the alimony provisions of the English divorce decree, nor precludes such recognition or enforcement on a basis other than that set out in the Act. ¹⁷⁷ While we have held that the Uniform Foreign Money-Judgments Recognition Act does not provide a basis for the recognition or enforcement of the alimony provisions of the English divorce decree, we think the decree (including the provisions dealing with alimony) may be entitled to recognition under general principles of comity. The rule is well stated in Litvaitis v. Litvaitis, 4 162 Conn. 540 , 295 A. 2d 519, 521-22 (1972) that: “The full faith and credit clause of the constitution of the United States does not apply to a divorce obtained in a foreign country. Courts of the United States are not required by federal law to give full force and effect to a judgment granted in a foreign nation.

Hilton v. Guyot, 159 U. S. 113 , 16 S. Ct. 139 , 40 L. Ed. 95 ; Rosenbaum v. Rosenbaum, 309 N. Y. 371 , 130 N.E.2d 902 ; Caldwell v. Caldwell, 298 N. Y. 146 , 81 N.E.2d 60 ; Christopher v. Christopher, 198 Ga. 361 , 31 S.E.2d 818 ; 33 Fordham L. Rev. 449 ; 32 U. Chi. L. Rev. 802 . On the other hand, judgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and judgments of one nation from another. Such recognition is granted to foreign judgments with due regard to international duty and convenience, on the one hand, and to rights of citizens of the United States and others under the protection of its laws, on the other hand.

This principle is frequently applied in divorce cases; a decree of divorce granted in one country by a court having jurisdiction to do so will be given full force