209 N.E.2d 709 (N.Y. 1965)
In 1954 Felix Ernest Kaufman obtained a divorce from the defendant in a district court at Juarez in Chihuahua, Mexico.1 To pursue the divorce Kaufman traveled to El Paso, Texas, registered at a motel, and the next day crossed the international boundary into Juarez.2 There he signed the Municipal Register, filed a certificate of registration with the district court, and submitted a petition for divorce alleging incompatibility and ill treatment.3
The following day the defendant appeared in the Mexican court by an attorney duly authorized to act for her.4 She filed an answer submitting to the jurisdiction of the court and admitting the allegations of the complaint.5 The decree of divorce was entered the same day and is recognized as valid by the Republic of Mexico.6 The Chihuahua Divorce Law permitted jurisdiction on the basis of residence proven by the Municipal Register or on the basis of express or tacit submission.7
In 1956 the plaintiff and the defendant were married in New York.8 The plaintiff later commenced an action in New York seeking to annul that marriage on the ground that the 1954 Mexican divorce was invalid and that the defendant therefore lacked capacity to marry in 1956.9
After trial at Special Term the court granted judgment annulling the marriage.10 The Appellate Division reversed the judgment and dismissed the complaint.11 The Court of Appeals also considered the companion case of Wood v. Wood, which involved a Mexican divorce decree entered under the submission provision of the Chihuahua law without proof of residence registration.12
Whether New York courts will recognize a divorce decree granted by a Mexican court when one spouse appeared personally in the foreign jurisdiction and the other appeared through an authorized attorney, without either party establishing domicile there?13
New York recognizes a foreign nation divorce decree as a matter of comity when the rendering court acquires jurisdiction through the personal appearance of one spouse and the authorized appearance of the other, even absent domicile in that nation, provided the decree does not offend New York public policy.14
Yes. The established facts establish that in 1954 Felix Ernest Kaufman traveled to El Paso, registered at a motel, crossed into Juarez, signed the Municipal Register, and filed a petition alleging incompatibility and ill treatment.15 The following day the defendant appeared by duly authorized attorney, submitted to jurisdiction, and admitted the allegations, after which the decree was entered the same day and is recognized as valid by Mexico.16 The Chihuahua Divorce Law permits jurisdiction on the basis of residence proven by the Municipal Register or by express or tacit submission.17
These bilateral contacts supplied the Mexican court with jurisdiction over the marriage as a legal entity that moved with the appearing spouse.18 New York precedent accepts such judgments affecting marital status of its domiciliaries when granted by a foreign nation without requiring domiciliary status there.19 The ephemeral nature of the contact does not alter the result because the public interest is not affected differently by a one-day formality than by a six-week formality.20 The Appellate Division correctly reversed the annulment judgment and dismissed the complaint.21
New York courts will recognize the Mexican divorce decree under these circumstances.22
Related opinions on this issue
Chief Judge Desmond concurred in the result but would declare such divorces void for the future.23 He maintained that Mexican bilateral divorces lack almost all elements New York considers requisites for a valid divorce, including true domicile and attention to the public interest in marriage as an institution involving three parties.24 He noted that such decrees are the fruit of consensual arrangements forbidden by statute.25
Desmond would give the ruling prospective effect only because tens of thousands of New Yorkers had relied on lower court decisions upholding these decrees, and retroactive invalidation would disrupt existing homes and marriages.26
Judge Scileppi dissented and would reverse the Appellate Division to permit the present appellants to succeed.27 He argued that jurisdiction over the subject matter of divorce requires a relationship of substantial permanence between the decree-rendering jurisdiction and the marital res.28 Scileppi maintained that the Mexican court lacked such jurisdiction as understood in New York.29
He concluded that comity should not extend to decrees resting on ephemeral contacts when the state maintains a vital interest in preserving the family unit under its restrictive divorce policy.30
Whether recognition of such a Mexican divorce decree is required or permitted as a matter of comity when the decree rests on grounds not accepted under New York law?31
Recognition of a foreign divorce decree is permitted as a matter of comity when the foreign court had jurisdiction through personal submission.32 This holds even though the grounds for divorce are inadmissible in New York.33 Comity offends no public policy of the state under these bilateral circumstances.34
Yes. The established facts show that the 1954 decree rested on incompatibility and ill treatment, grounds not accepted in New York, yet one spouse appeared personally before the Juarez court after completing the statutory residence formality and the other appeared through an authorized attorney who submitted to jurisdiction.35 Although New York limits divorce to adultery, the balanced public policy now requires recognition of the bilateral Mexican divorce rather than withholding it.36 Such recognition as a matter of comity offends no public policy of this State.37 The long series of lower court decisions recognizing these decrees, together with the reliance of thousands of persons on those decisions, supports treating the marriage itself as moving with either spouse in a highly mobile era.38
The order affirming recognition of the decree must therefore stand.39
Recognition of the Mexican divorce decree is permitted as a matter of comity even though the grounds are not accepted under New York law.40
Related opinions on this issue
Chief Judge Desmond would refuse recognition for future decrees on the ground that they are repugnant to New York basic ideas of domicile, public interest in marriage, and prohibition of consensual divorce.41 He agreed that past decrees should stand to avoid destructive effects on existing families.42
Desmond emphasized that Mexican bilateral divorces lack almost all elements New York considers requisites for a valid divorce.43 He stressed that the residence requirements of Chihuahua are minimal and inadequate to form a recognizable domiciliary jurisdictional base.44 He observed that no attention is paid in Juarez divorces to the principle that marriage is an institution in which the public as a third party has a vital interest.45 He noted that such decrees are blatantly the fruit of consensual divorce arrangements forbidden by New York public policy statute.46
Judge Scileppi would refuse recognition altogether because the absence of subject-matter jurisdiction over the marital res renders the decree contrary to public policy.47 He would allow the present appellants to benefit from the ruling while applying it prospectively only to others.48
Scileppi argued that jurisdiction over the subject matter of divorce depends upon the domicile of at least one party in the decree rendering forum.49 He maintained that the Mexican court lacked such jurisdiction as understood in New York because there was no relationship of substantial permanence between the decree-rendering jurisdiction and the marital res.50 He concluded that comity should not extend to decrees resting on ephemeral contacts when the state maintains a vital interest in preserving the family unit under its restrictive divorce policy.
Whether the same recognition rules apply to a Mexican divorce decree entered solely on the basis of the parties' submission without proof of residence registration?51
The same recognition rules apply to a Mexican divorce decree entered solely on the basis of the parties' submission without proof of residence registration when one party appears personally and the other appears through an authorized attorney.52 The voluntary submission supplies jurisdiction over the marriage entity equivalent to that acquired through the residence formality.53
Yes. The established facts in the companion case of Wood v. Wood show that the Mexican decree was entered under the submission provision of the Chihuahua Divorce Law without proof of registration as a resident.54 One party appeared personally in Chihuahua before the court and the other appeared through a duly authorized attorney.55 These contacts are sufficient to require consistent decision with Rosenstiel because the personal appearance of one party and the authorized appearance of the other supply the same jurisdictional foundation over the marriage.56
The Appellate Division affirmance of the dismissal of the separation complaint was therefore correct, and the order should be affirmed.57
The same recognition rules apply to a Mexican divorce decree entered solely on the basis of the parties' submission without proof of residence registration.58