Marriage of Red Fox, Matter of

• Decision Date: 24 November 1975
• Citation: 23 Or.App. 393,542 P.2d 918
• Parties: In the Matter of the MARRIAGE OF David Joseph RED FOX, Appellant, and Marcia Annett Red Fox, Respondent.
• Court: Oregon Court of Appeals

Page 918

542 P.2d 918

23 Or.App. 393

In the Matter of the MARRIAGE OF David Joseph RED FOX, Appellant and Marcia Annett Red Fox, Respondent.

Court of Appeals of Oregon.

Argued and Submitted Oct. 20, 1975.

Decided Nov. 24, 1975.

John A. Hudson, Eugene, argued the cause for appellant. With him on the brief were Husband, Johnson & Fechtel, Eugene.

Dennis C. Karnopp, Bend, argued the cause for respondent. With him on the brief were Panner, Johnson, Marceau & Karnopp and C. Montee Kennedy, Bend.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

LANGTRY, Judge.

This appeal raises the single question of whether a divorce decree issued by the Tribal Court for the Confederated Tribes of the Warm Springs Reservation in Oregon was entitled to recognition by the circuit court as a bar to the maintenance of a suit for dissolution filed by appellant-husband.

On May 23, 1974 respondent-wife had filed her complaint for divorce in the Tribal Court. Three days later, while physically present on the Warm Springs Reservation, husband was personally served with a summons and complaint directing him to appear in the Tribal Court on July 23, 1974. At approximately noon on June 12, 1974 husband received a second 'Notice of Action' informing him that the hearing on his wife's cause of action had been advanced and that his presence would be required at 2 p.m. on June 14. ¹ He subsequently declined to appear on that date. Although husband's attorney had contacted the Chief Judge of the Tribal Court on June 13, at which time his request to appear on behalf of his client was denied, ² the record does not show that any request for a continuance or objection to the means by which the matter had been expedited was submitted to the court. Nor were any objections made to the applicable Tribal Court hearing procedures. Finding husband to be in default, the court proceeded to issue a decree dissolving the marriage, dividing the property of the parties, and awarding custody of the minor children to wife.

On October 7, 1974 husband filed an amended petition ³ in the Lane County Circuit Court seeking dissolution of his marriage to wife. Wife in turn filed a plea in bar in which it was argued that the existing decree of the Tribal Court had 'determined matters now at issue * * *.' By way of an affirmative defense to wife's plea husband alleged in reply that the Tribal Court had no jurisdiction and its decree did not, therefore, constitute a bar to the state court proceeding. In the course of the hearing on the plea husband also argued that the Tribal Court decree was 'void' because that court had denied him due process by (1) failing to afford him 'reasonable notice' of its proceedings, (2) failing to afford him an opportunity to be heard, (3) refusing to allow him to be represented 'by counsel or otherwise,' and (4) failing to provide him with a 'fair and impartial tribunal.'

'* * * (husband) was accorded due process of law in the Warm Springs Tribal Court * * * a valid Decree of Dissolution of Marriage had been issued which determines the matters now at issue in this Court.'

It then entered the order and decree dismissing husband's suit from which this appeal has been taken.

In an opinion by Mr. Chief Justice Marshall the Supreme Court held in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832), that Indians were in effect subject of federal law, to the exclusion of state law, but entitled to exercise their own inherent rights of sovereignty so far as might be consistent with federal law. Felix Cohen ⁴ summarized subsequent judicial decisions involving the question of tribal powers as adhering to three fundamental principles: (1) An Indian tribe possesses, in the first instance, all of the powers of any sovereign state; (2) although conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, it does not, by itself, affect the internal sovereignty of the tribe, i.e., its powers of local self-government; and (3) while these powers are subject to qualification by treaties and by express legislation of Congress, except as thus expressly qualified, full powers of internal sovereignty remain vested in the Indian tribes and in their duly constituted organs of government. While the decisions of tribal courts are not, therefore, entitled to the same 'full faith and credit' ⁵ accorded decrees rendered in sister states, the quasi-sovereign nature of the tribe does suggest that judgments rendered by tribal courts are entitled to the same deference shown decisions of foreign nations as a matter of comity. ⁶

A rule of general application is that a judgment entered by a court of a foreign nation is entitled to recognition to the same extent and with as broad a scope as it has by law or usage in the courts of the jurisdiction where rendered, If: (1) the foreign court actually had jurisdiction over both the subject matter and the parties; (2) the decree was not obtained fraudulently; (3) the decree was rendered under a system of law reasonably assuring the requisites of an impartial administration of justice--due notice and a hearing; and (4) the judgment did not contravene the public policy of the jurisdiction in which it is relied upon. Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895); Goldberg v. Goldberg, 57 Misc.2d 224, 291 N.Y.S.2d 482 (N.Y. County Ct. 1968).

No claim of fraud, contravention of public policy or lack of jurisdiction over the marriage or the parties is made here. ⁷ Husband's position is that the Tribal Court proceeding failed to provide him with the 'due process' essential as a prerequisite to the entry of a valid and enforceable judgment. Because, it is argued, the Tribal Court failed to provide either 'adequate' notice or an 'impartial' tribunal, or to make representation available to him, the decree entered by the court was, in fact, 'void' and unavailable as a bar to the state court action.

While a foreign decree will not be recognized as a matter of comity where it has been obtained by means of a procedure which denies a party fundamental due process, the recognition to be accorded a foreign judgment is not necessarily affected by the fact that procedures employed by the courts of the jurisdiction in which such judgment was rendered differ in some respect from those of the courts in which the judgment is relied upon. Appellants in Hilton v. Guyot, supra, sought to preclude the recognition of a decree entered by a French court because in the course of the proceeding leading up to the entry of that decree a party had been permitted to testify 'not under oath' and without cross-examination and because documentary evidence clearly inadmissible in the courts of the United States had been admitted. In rejecting this argument the Supreme Court concluded:

'* * * (T)he fact that the procedure (in the French court) differed from that of our own courts is (not), of itself, a sufficient ground for impeaching the foreign judgment.

'* * *

'It must * * * always be kept in mind that it is the paramount duty of the court, before which any suit is brought, to see to it that the parties have had a fair and impartial trial, before a final decision is rendered against either party.

'When * * * (a) foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and Opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is Prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice * * *.' (Emphasis supplied.) 159 U.S. at 205--06, 16 S.Ct. at 159.

See also ORS 41.360(16).

Noting the general rule to be that the burden of proof falls upon one attacking the validity of a foreign judgment, we find the lack of...