Opinion
No. 647-04-13
October 26, 2004
MEMORANDUM OF DECISION
The defendant was a member of the United States Army stationed in Europe. From June to December 1994 he was deployed as part of a United Nations military force in the Bosnian War, ending up in what was then Yugoslavia, where he met the plaintiff. He completed his service and was ordered back to the United States. He returned briefly to Yugoslavia and married the plaintiff. She accompanied the defendant to the United States, and they resided for 19 months at Fort Riley, Kansas.
The defendant completed his tour of duty and the couple moved to Connecticut. Within a matter of weeks, the plaintiff left the defendant. She resided for a time with a friend in East Hartford. In December 1996 she returned to what is now the Republic of Macedonia. On January 17, 1997 the plaintiff gave birth to a daughter at Ohrid, Macedonia.
The Republic of Macedonia declared its independence from Yugoslavia on September 8, 1991. However Greece disputed the use of the name Macedonia and the use of what it considered Hellenic symbols, and the Albanian government raised concerns over the protection of the rights of ethnic Albanians within the country. For a time, international recognition was delayed and the area was known as the "Former Yugoslavian Republic of Macedonia." Substantial international recognition was achieved by 1996 although ethnic Albanians in Kosovo continue to resist demarcation of the boundary in accordance with the 2000 delinitation treaty, which transferred a small amount of land to Macedonia after the Kosovo war. The dispute with Greece over country's name persists.
Thereafter, the plaintiff filed an action in court in Macedonia seeking a dissolution of marriage and a separate action for support on behalf of the child, Tijana. The Macedonia court rendered a "verdict" dissolving the marriage on September 28, 1998 and a separate "verdict" dated March 5, 1999, ordering the defendant to pay "alimony" for the minor child "value 300 American dollars monthly." Additional findings of fact will be stated where necessary.
The plaintiff now seeks to register these "verdicts" and enforce the child support pursuant to General Statutes § 46b-213g et seq., a portion of the Uniform Interstate Family Support Act, known as "UIFSA."
The defendant filed a notice indicating he is contesting the registration of the support order pursuant to General Statutes § 46b-213l. The defendant objects to the registration on ground that the issuing court lacked personal jurisdiction over him and therefore that the judgment for child support is void. The defendant also claims to have a valid defense to the Macedonia judgment. At the request of the plaintiff, a telephonic hearing was held to allow testimony from both parties. See General Statutes § 46b-213a(f).
A hearing was commenced with the plaintiff participating via telephone in Macedonia, while the defendant and his counsel, as well as the assistant attorney general appeared in court. However, there was some difficulty in obtaining the telephone connection as a conference call. A call was placed to the plaintiff instructing her to call the court. This connection was made, but almost immediately the plaintiff complained that she could not afford the expense of the long-distance call. She was briefly questioned by counsel, after which she terminated the phone call. The remainder of the hearing was conducted in her absence. During the course of the hearing and through subsequent briefs, additional issues arose which proved determinative.
I
In order to register a support order or judgment, the registering party or agency must submit the following documents: a transmittal letter; a certified copy of "all orders to be registered, including any modification of an order," a sworn registration statement; the name of the obligor and specified information regarding the obligor, if known; the name and address of the obligee and the name and address of the agency or person to whom payments are to be remitted; and "a statement disclosing whether or not any other action or proceeding is currently pending concerning the support of the child who is the subject of such support order." General Statutes § 46b-213h.
The plaintiff herself initiated this registration. It was not forwarded through the Macedonia court or any child support agency. Direct filing by an individual petitioner is specifically permitted under UIFSA. See General Statutes § 46b-212m(c). However, the individual petitioner still must meet the filing requirements provided by law. In. this case, the filling is not complete. The only documents filed are uncertified copies of the two "verdicts" with certified translations into English, a copy of the plaintiff's birth certificate and one of the child's birth certificate. The copy of the support judgment, or "verdict" is not certified by the rendering court. There is no registration statement, no transmittal, no statement regarding modification or pending action.
Although our courts liberally construe statutes dealing with child support, it must also be recognized that this is a statutory court, not a constitutional court, and the procedure involved is wholly a creature of statute. As such, the failure to comply with the requirements to initiate the action implicates the subject matter jurisdiction of the court. The court finds that the registration is defective for the forgoing reason and on that basis alone, the objection to the registration is sustained.
II
Although the defendant did not raise the issue in his pleadings, he now argues that Macedonia should not be considered a reciprocating jurisdiction for purposes of enforcing child support. He argues that the registration should be dismissed for want of jurisdiction.
Constitutional and statutory Full Faith and Credit requirements, where they purport to require recognition and enforcement of sister state support orders do not apply to foreign jurisdictions which are not states of the American union. G. Castle, "International Child Support — 1999," 32 Family L.Q. 525, 526 (1998); U.S. Const., art. IV, § 1; 28 U.S.C. § 1738B; Litvaitis v. Litvaitis, 162 Conn. 540, 544-45, 295 A.2d 519 (1972); Dalley v. Wineglass, 11 S.M.D. 15-20, 29-32 (1997); Peterson v. Israel, 11 S.M.D. 203, 205, 211-13 (1997).
Instead, a court of this state has broad discretion to recognize and enforce a foreign support order under principles of comity, or "mutual respect." G. Castle, supra, 32 Family L.Q. 526; see also, The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 165, 44 L.Ed. 251 (1900); Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895); Peterson v. Israel, supra, 11 S.M.D. 206. "American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality . . . and for any sovereign interest expressed by a foreign state." Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 546, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987); Grabka v. Grabka, 14 S.M.D. 260, 270 (2000).
Prior to the enactment of UIFSA interstate and international child support matters were adjudicated in Connecticut pursuant to the "Uniform Reciprocal Enforcement of Support Act" (URESA). Reciprocity was accorded to selected foreign jurisdictions by defining as a "state" for purposes of the act "any foreign jurisdiction in which this or a substantially similar reciprocal law has been enacted." General Statutes § 46b-180(12). URESA was repealed and replaced by UIFSA effective January 1, 1998. Public Acts No. 97-1, Spec. Sess., June 18, 1997.
The provision in UIFSA that includes foreign jurisdictions is broader in scope. The term "state" for purposes of establishing and enforcing a support order includes "a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders which are substantially similar to the procedure under sections 46b-212 to 46b-213v [UIFSA], inclusive, the Uniform Reciprocal Enforcement of Support Act or the Revised Uniform Enforcement of Support Act." General Statutes § 46b-212a(20).
"Comparison of the language of the two acts suggests that the threshold for a foreign country to qualify is lower under UIFSA because unlike URESA the foreign country's laws are not required to be reciprocal and the `substantially similar' standard that appears in both statutes appears to apply to the `law' as a whole under URESA while applies only to `procedures' under UIFSA." Grabka v. Grabka, supra, 14 S.M.D. 269.
The defendant claims that the Republic of Macedonia is not recognized as a reciprocating jurisdiction for child support by either the United States Department of State, or by the Attorney General of Connecticut. Although the federal government is not the primary player in child support matters and family support is one of the few areas in which states can form their own agreements with foreign governments, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193, 110 Stat. 2105, § 371, 42 U.S.C. 659A, authorizes the Secretary of State of the United States with the concurrence of the Secretary of Health and Human Services to make declarations of reciprocity with foreign jurisdictions for child support establishment and enforcement. Federal law also specifically permits States to enter into arrangements for establishment and enforcement of child support obligations with foreign countries not subject to such declaration. 42 U.S.C. § 659A(d). In Connecticut, one such arrangement is a list of foreign jurisdictions, much more extensive than the Federal list, with which the Attorney General has negotiated agreements. The Republic of Macedonia is on neither list.
42 U.S.C. § 459A(a) provides, in pertinent part: "The Secretary of State, with the concurrence of the Secretary of Health and Human Services, is authorized to declare any foreign country (or a political subdivision thereof) to be a foreign reciprocating country if the foreign country has established, or undertakes to establish, procedures for the establishment and enforcement of duties of support owed to obligees who are residents of the United States, and such procedures are substantially in conformity with the standards prescribed under subsection (b) [which include procedures for establishing paternity and enforcing orders]." The jurisdictions thusfar declared to be a foreign reciprocating country under this provision include: Australia, several provinces of Canada, Czech Republic, Ireland, Netherlands, Norway, Poland, Portugal, Slovak Republic and Switzerland.
However, absence of Macedonia from those foreign jurisdictions recognized by the Attorney General or the State Department declaration does not preclude this court from making its own determination as to whether the foreign jurisdiction sufficiently meets the standard of substantially similar procedure. See, Grabka v. Grabka, 14 S.M.D. 260, 271 (2000); Office of Child Support v. Sholan, 172 Vt. 619, 620, 782 A.2d 1199 (2001); State ex rel. Desselberg v. Peele, 136 N.C.App. 206, 211, 523 S.E.2d 125 (1999), cert. denied, 351 N.C. 479, 543 N.E.2d 125 (2000). Neither the delegated authority of the Connecticut Attorney General nor Section 659A preempts jurisdiction over support orders, or the court's authority to make an independent determination.
Domestic relations are preeminently matters of state law. "Insofar as marriage is within temporal control, the States lay on the guiding hand. `The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.' In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890) . . . State family and family-property law must do `major damage' to `clear and substantial' federal interests before the Supremacy Clause will demand that state law be overridden. United States v. Yazell, 382 U.S. 341, 352, 88 S.Ct. 500, 15 L.Ed.2d 414 (1966)." Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1972). "Congress, when it passes general legislation, rarely intends to displace state authority in this area." Mansell v. Mansell, 490 U.S. 581, 587, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).
"In the present case, there is neither an express preemption clause nor a conflict of words preventing [the court] from applying principles of comity to recognize and give effect to the foreign child support order at issue. The language of section 659a does not reflect in any way intent by Congress to preempt state-level efforts at enforcement of foreign support orders . . . Section 659a does not provide the sole mechanism by which foreign support orders may be enforced in state courts. The purpose of the statute, as reflected in its express language and the legislative history behind its passage, is to provide the United States Secretary of State with the power to enter into reciprocal agreements with foreign nations so as to promote the recognition and enforcement of foreign support orders, and not to prevent states from giving effect to foreign support orders. See 42 U.S.C. § 659a; 1996 U.S.C.C.A.N. 2495. Nor does the statute require states to enter into reciprocal enforcement arrangements with the foreign nations from which the orders originated before seeking to enforce those orders." (Citations omitted.) Office of Child Support v. Sholan, supra, 172 Vt. 621.
Our law does not require the foreign jurisdiction to have identical law or even reciprocity. Uniform Interstate Family Support Act § II(A), prefatory note, 9 U.L.A. 240 (1999). UIFSA directs us to enforce a foreign order so long as there is substantially similar procedure. The fact that the statute continues to cite URESA within the ambit of "substantially similar procedure" suggests that a broad interpretation is appropriate. The burden is on the defendant to demonstrate why comity should not be accorded to the judgment of the foreign court. See, Bruneau v. Bruneau, 3 Conn.App. 453, 455, 489 A.2d 1049 (1985); Grabowski v. Borucinska-Grabowska, Superior Court, judicial district of Tolland at Rockville, Docket No. FA93-0054413, 1994 Ct.Sup. 1391 (February 10, 1994, Kaplan, J.).
The problem in this case is that the plaintiff's registration documentation is so sparse that the court cannot fairly judge whether Macedonia law provides a substantially similar procedure. Our prior law, URESA, specifically required a registration request to include a copy of the reciprocal enforcement of support law of the jurisdiction in which the order was made. General Statutes § 46b-198b (repealed effective January 1, 1998). At least one court found that requirement to implicate subject matter jurisdiction. See People's Republic of Poland ex rel. Bieniek v. Wegrzyn, 517 N.W.2d 81, 83 (Minn.App. 1994).
Although the specific requirement is not included in the present statute, UIFSA, when registration of a support judgment from a foreign country is requested, it really must be considered mandatory that the documents include a copy not only of that jurisdiction's law providing a similar procedure to allow a national of this country to establish and enforce child support in its courts, but also a copy of all applicable domestic relations laws. The responding tribunal cannot determine whether or not to extend comity without such submission. Furthermore, noting that the law of the issuing jurisdiction governs such matters as the nature, extent and duration of the support order, see General Statutes § 46b-213j, this documentation is necessary even after a registration is confirmed to properly administrate enforcement of the order. This requirement is particularly significant in the present case, where the jurisdiction issuing the order is a newly reestablished country whose legal codes are not readily available in the average American courthouse library.
Although the court rejects the defendant's argument that the Macedonia judgment cannot be recognized, it is unable to determine whether a substantially similar procedure is available to a Connecticut resident seeking to enforce a support order in Macedonia. Thus the court is also unable to confirm the registration.
III
The defendant has raised issues of due process relating to the underlying orders, and in particular challenges the ability of the Macedonia court to obtain personal jurisdiction over him. He claims an absence of minimal contacts, citing Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132, reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978). The minimum contacts standard, which provides a basis for courts to exercise long-arm jurisdiction over a defendant outside of its physical bounds, was first articulated in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Technically the minimum contacts standard is applicable to interstate diversity matters, not international, since it articulates application of the Full Faith and Credit clause of the United States Constitution. However, in determining the application of UIFSA or affording of comity to a judgment of a foreign court, the minimum contacts standard may still be a useful criterion of whether the underlying judgment afforded the adverse party reasonable notice and due process. The due process cause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1984).
"Whether 'minimum contacts' exist to justify personal jurisdiction over a nonresident defendant depends on the individual circumstances of each case. 'Like any standard that requires a determination of reasonableness, the minimum contacts test of International Shoe is not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite affiliating circumstances are present.' (Internal quotation marks and citations omitted.) Kulko v. California Superior Court, [ supra 436 U.S. 92]. '[A]n essential criterion in all cases is whether the quality and nature of the defendant's activity is such that it is reasonable and fair to require him to conduct his defense in that State.' (Internal quotation marks omitted.) Id. See also Frazer v. McGowan, 198 Conn. 243, 249, 502 A.2d 905 (1986)." GATX Financial Corp. v. National Fairways Partners I, 36 Conn. L. Rptr. 26, 2003 Conn.Sup. 13129, 13132-3 (Alander, J., 2003).
In the case sub judice, it would be hard to determine whether sufficient minimum contacts exist. The facts as presented at the hearing would incline the court toward finding sufficient minimal contacts. Although the defendant argues that his situation is "almost identical" to the fact situation in Kulko a thorough comparison reveals significant differences. It is true that the appellant in Kulko married during a short interlude while transferring from one posting to another-in that case, a three-day visit to California while en route from his military base in Texas to a tour of duty in South Korea. Kulko v. Superior Court of California, supra, 436 U.S. 86. To this extent it is similar to the defendant's few day interlude in Macedonia while in transit from Germany to Kansas. Thereafter, the similarity breaks down.
Kulko and his wife were both domiciled in New York State when they married in 1959. She returned to New York immediately after their wedding. He returned there after completing his military duty. The children were all born in New York State, and the family resided there until the husband and wife separated in 1972. They even contracted a separation agreement in New York. The marriage was dissolved by decree of a court in Haiti. Thereafter, the wife moved to San Francisco, and it was only when she chose to contest custody in the California courts that the issue arose. At the time she commenced the action, the event the California court relied on for minimal contact (appellant's presence in California to marry) was over thirteen years removed from the commencement of the legal action. Kulko v. Superior Court of California, supra, 436 U.S. 87-89.
The trial court also cited the appellant's alleged consent to allowing his children to reside with the mother in California during periods not provided in the separation agreement as sufficient minimal contact.
In the present case, the plaintiff was a resident of the section of the former Yugoslavia that is now Macedonia when they met. Although the defendant's visit at the time of the marriage was only six days, he was deployed in Macedonia for over six months, from June to December of 1994. (Transcript, p. 13.) The six-day marital interlude occurred in January 1995 just a month after his seven-month hitch. Thus his connection to the Republic of Macedonia was extensive compared to Kulko's connection to California. The plaintiff's move back to Macedonia was less than two years later. The child, Tijana, was born in Macedonia in January 1997 and the legal action for the divorce and the child support "verdict" followed within two years thereafter. Again this is not comparable to the thirteen-year hiatus in Kulko.
However, once again this court is deprived of the opportunity to fairly evaluate this defense because of the paucity of documentation provided with the registration. This court has not been provided with copies of Macedonia law regarding service of process or long-arm jurisdiction. The "verdict" does not indicate how the court or if the court found there was service on defendant or how it purportedly obtained jurisdiction. It is noted that in both cases, apparently the court appointed an attorney for the defendant. It is not clear whether Macedonia law requires such attorney to contact the defendant and if so whether either attorney attempted to make such contact.
Although this court is not persuaded that the Macedonia court was unable to obtain personal jurisdiction over the defendant, the lack of documentation does not establish that the Macedonia court did obtain such jurisdiction. "Recovery upon [a foreign judgment] can be resisted . . . on the grounds that the court which rendered it was without jurisdiction." Milwaukee County v. M.E. White Co., 296 U.S. 268, 275, 56 S.Ct. 229, 80 L.Ed. 220 (1935); Tilt v. Kelsey, 207 U.S. 43, 28 S.C. 1, 52 L.Ed. 95 (1907); Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); D'Arcy v. Ketchum, 52 U.S. 165, 11 How. 165, 13 L.Ed. 648 (1851).
Lack of jurisdiction renders a foreign judgment void. See Underwriters National Assurance Co. v. North Carolina Life Accident Health Ins. Guaranty Assn., 455 U.S. 691, 704-5, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982); Nevada v. Hall, 440 U.S. 410, 421, 99 S.Ct. 1182, 59 L.Ed.2d 416, reh. denied, 441 U.S. 917, 99 S.Ct. 2018, 60 L.Ed.2d 389 (1979); Thompson v. Whitman, 85 U.S. 457, 18 Wall. 457, 469, 21 L.Ed. 897 (1874); Morabito v. Wachsman, 191 Conn. 92, 96-97, 463 A.2d 593 (1983); Peterson v. Israel, 22 Conn. L. Rptr. 536; 1998 Ct.Sup. 9232, 9237-39 (July 21, 1998, Bishop, J.).
"A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction, unless the jurisdictional issue was fully litigated before the rendering court or the defending party waived the right to litigate the issue. Underwriters National Assurance Co. v. North Carolina Life Accident Health Ins. Guaranty Assn., supra, 706; Sherrer v. Sherrer, 334 U.S. 343, 350-52, 68 S.Ct. 1087, 92 L.Ed. 1429 (1948); Williams v. North Carolina, 325 U.S. 226, 229-30, 233, 65 S.Ct. 1092, 89 L.Ed. 1577, reh. denied, 325 U.S. 895, 65 S.Ct. 1560, 89 L.Ed. 2006 (1945); Morabito v. Wachsman, 191 Conn. 92, 96-99, 463 A.2d 593 (1983); 2 Restatement (Second), Judgments 81, comment (a) (1982); 1 Restatement (Second), Conflict of Laws 96 (1971)." Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56-7, 570 A.2d 687 (1990); Beaufort County ex rel. Daniels v. Miller, 18 S.M.D. (2004).
"The key . . . is that if the issue of in personam jurisdiction is litigated by the tendering court, the defendant is bound by that decision." Beaufort County ex rel. Daniels v. Miller, 18 S.M.D. (2004); see Peterson v. Israel, supra, 22 Conn. L. Rptr. 536. The absence of documentation of how the Macedonia court purported to exercise jurisdiction along with supporting code or law renders the conclusion that the registration now pending is fatally flawed. See State of Utah v. Merritt, 6 S.M.D. 92, 98 (Steele, F.S.M. 1992).
IV
The court is acutely aware that the immediate short-term result of this decision is that Tijana Cresenzi, a seven-year-old child, may be deprived of child support from her father. It is important not to read too much into this decision. Essentially, the court is sustaining the defendant's objection and dismissing the registration because the registration is woefully incomplete. The merits of the plaintiff's claim have not been reached, because the materials submitted deprive the court of the opportunity to address the claim on its merits.
The state of Connecticut and the plaintiff, both on behalf of Tijana, are left with several alternatives. If the plaintiff is able to marshal all of the missing documentation mentioned in this decision, she could file a substituted registration request. Alternatively, she could file a support petition under UIFSA, although this would require much the same documentation plus completion of a petition and transmittal on documents akin to the standardized forms. If she is unable to provide sufficient documentation to prove Macedonia warrants comity or enforcement under UIFSA, she can apply to the Department of Social Services for IV-D services and file a support petition based on her marriage to the defendant. She would be well advised to consult thoroughly with the assistant attorney general who is charged with providing necessary legal services on behalf of the petitioner. See General Statutes §§ 46b-212t(a); 46b-231(t)(2) and (3).
For the foregoing reasons, the court finds the registration request to be incomplete. The defendant's objection to the registration of the "verdicts" of the courts of the Republic of Macedonia is sustained, ant the registration is dismissed without prejudice.
BY THE COURT
Harris T. Lifshitz Family Support Magistrate