Mayer v. Mayer
| Decision Date | 21 February 1984 |
| Docket Number | No. 8221DC668,8221DC668 |
| Parties | Doris Hermes Crumpler MAYER v. Victor MAYER. |
| Court | North Carolina Court of Appeals |
Lewis & Bowden by Michael J. Lewis, Winston-Salem, for plaintiff-appellant.
Smith, Moore, Smith, Schell & Hunter by James A. Medford and Robert H. Slater, Greensboro, for defendant-appellee.
This case involves a challenge to a Dominican Republic (Dominican) divorce decree by Victor Mayer, who asserts that his wife's divorce from her first husband, which he actively helped procure, was invalid, and who thereby seeks to avoid paying alimony to his wife. We hold (1) that, although the Dominican divorce decree is invalid, Victor Mayer, based on the facts of this case, is estopped from asserting its invalidity; and (2) that Victor Mayer is estopped from avoiding the consequences of his contract of marriage with Doris Mayer.
It may have been easier for us to have declared the Dominican divorce voidable and challengable only by Doris Mayer's first husband, Fred Crumpler, especially since we hold in part IV, infra, that Victor Mayer is estopped from asserting any invalidity in the Dominican proceedings. See Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956). We, however, have decided to address the issues "head-on" because of a demonstrated need 1 to definitively resolve questions about "quickie" foreign divorces--that is,
the concept of foreign country migratory divorces for American domiciliaries--with its jurisdictional and public policy defects; its alleged 'defense' of estoppel; and with one exception piled upon another--has become so confusing to the lay public and the practicing bar that very few people adequately understand the underlying ramifications and liabilities involved in such divorces.
Swisher, Foreign Migratory Divorces: A Reappraisal, 21 J.Fam.L. 9 (1982-83).
Praying for divorce from bed and board, permanent alimony, and alimony pendente lite, Doris Mayer filed her complaint against Victor Mayer on 15 October 1981. Denying that he was lawfully married to Doris Mayer, and counter-claiming for an annulment, Victor Mayer, in his answer, specifically asserted that at the time of his purported marriage, Doris Mayer was already married to Fred Crumpler; that she had previously attempted to divorce Fred Crumpler by obtaining a divorce decree from a Dominican court; that the Dominican divorce decree was void and in contravention of the laws of North Carolina; and that Doris Mayer knew this, having been so advised by counsel.
This case was heard in the trial court upon Doris Mayer's motions for alimony pendente lite and attorney's fees. At the close of Doris Mayer's evidence, the trial court denied the motions, after determining (a) that the Dominican divorce was invalid; (b) that the Mayers' marriage was void; and (c) that Victor Mayer was not estopped from denying the validity of Doris Mayer's divorce. Doris Mayer appeals.
Initially, both parties direct our attention to Fliehr v. Fliehr, 56 N.C.App. 465, 289 S.E.2d 105 (1982) and Stephenson v. Stephenson, 55 N.C.App. 250, 285 S.E.2d 281 (1981), which hold that orders for alimony pendente lite are interlocutory and not immediately appealable. Although this Court expressed its concern about the "backlog of appeals" in Fliehr and Stephenson, the primary rationale underlying those decisions is that appeals should not be taken to delay execution of district court orders for alimony pendente lite. Fliehr, 56 N.C.App. at 466, 289 S.E.2d at 106. That logic is not frustrated in this case since the wife's request for alimony was denied by the district court.
We believe this matter should be heard because it involves intriguing, if not novel, questions of law, and conflicting policy considerations. Additionally, litigation in the district court is unlikely to resolve the controversy. Further, judicial resources will be conserved by hearing this case, since the same questions raised now would likely be raised on appeal following a final order in district court.
Validity of the Dominican Divorce
To put Doris Mayer's first argument--that her Dominican divorce was valid--in perspective, we outline it in narrative form.
1. Although the full faith and credit clause of the United States Constitution, Article IV, Section 1, which requires North Carolina to recognize bilateral divorces of sister-states, has no application to foreign judgments, the criteria by which North Carolina grants comity to foreign divorce decrees should reasonably parallel the criteria North Carolina uses when it recognizes divorces of sister-states. In that way, North Carolina can maintain a consistent divorce policy.
2. A valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States. Restatement (Second) of Conflict of Laws § 98 (1971). Therefore, the bilateral divorce obtained by Doris Mayer should be recognized since it does not offend the public policy of North Carolina--that is, the grounds upon which the divorce was granted, irreconciliable differences, are substantially equivalent to those of a divorce granted under this State's no-fault divorce statute, N.C.Gen.Stat. § 50-6 (1976), which allows a divorce based on one year's separation of the parties.
3. Because there is neither evidence of partiality on the part of the Dominican court, nor fraud in the procurement of the Dominican divorce judgment, it would be a waste of time and a duplication of efforts for North Carolina's courts to go through the formalities of granting a divorce on the same grounds as did the Dominican court, for a marriage that, for all practical purposes, has already been terminated. North Carolina has no interest in perpetuating a status out of which no good can come and from which harm may result. Or, as stated by the New Jersey Supreme Court: "There remains little, if any, interest in encouraging the resurrection of deceased marriages, even if pronounced dead by other tribunals whose processes are not completely consistent with our own." 2 Kazin v. Kazin, 81 N.J. 85, 98, 405 A.2d 360, 367 (1979).
4. North Carolina has recognized that there is a presumption of the validity of the second marriage which prevails over the presumption of the continuance of the first. See Denson v. C.R. Fish Grading Co., 28 N.C.App. 129, 220 S.E.2d 217 (1975), and Parker v. Parker, 46 N.C.App. 254, 265 S.E.2d 237 (1980). That principle is served better by holding Victor Mayer to his obligations as a husband.
5. Finally, North Carolina's public policy is affected no more by a six-week bilateral Nevada divorce, which North Carolina must acknowledge under the full faith and credit clause, than a five-day foreign divorce. "Nevada gets no closer to the real public concern with the marriage than [the Dominican Republic]," since the establishment of a synthetic domicile in a sister state for the facile termination of a marriage is no less a subterfuge to circumvent North Carolina's interest in marriages. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 73, 262 N.Y.S.2d 86, 90, 209 N.E.2d 709, 712 (1965), cert. denied 384 U.S. 971, 86 S.Ct. 1861, 16 L.Ed.2d 682 (1966). Consequently, a balanced social policy requires that comity be granted to the present divorce decree.
Doris Mayer's argument, although masterfully elaborate and powerful, is based on a faulty premise, is contrary to the view held by a majority of the states in this country, and is at odds with an equally powerful and more persuasive public policy argument.
The full faith and credit clause has no application to foreign judgments. Recognition of foreign decrees by a State of the Union is governed by principles of comity. Consequently, based on notions of sovereignty, comity can be applied without regard to a foreign country's jurisdictional basis for entering a judgment. More often than not, however, "many of the American states are likely to refuse recognition [to deny comity] to a divorce decree of a foreign country not founded on" a sufficient jurisdictional basis. 1 R. Lee, North Carolina Family Law § 104, at 488 (4th ed. 1979). That is,
[a] foreign divorce decree will be recognized, if at all, not by reason of any obligation to recognize it, but upon considerations of utility and mutual convenience of nations. Recognition may be withheld in various circumstances, as where the jurisdiction or public policy of the forum has been evaded in obtaining the divorce.
Id. at 487. Since the power of a State of the Union to grant a divorce decree is dependent upon the existence of a sufficient jurisdictional basis--domicile or such a relationship between the parties of the State as would make it reasonable for the State to dissolve the marriage--it follows that the validity of a foreign divorce decree should depend upon an adequate jurisdictional basis. See Restatement (Second) of Conflict of Laws § 72 (1971).
In this case the Dominican Republic had no interest in the marriage of the two North Carolinians, Doris Mayer and Fred Crumpler. Yet, on Doris Mayer's five-day sojourn to the Dominican Republic, the Dominican court purported to dissolve the marriage of two domiciliaries of North Carolina upon the grounds of "irreconciliable differences." Neither of the parties in this lawsuit had any connection with the Dominican Republic, save Doris Mayer's five-day stay there for the sole reason, by her own testimony, to obtain the divorce decree.
Further, Doris Mayer's characterization of the Dominican proceeding as "bilateral" rather than "ex parte" is not supported by the record. There is no evidence that Fred Crumpler appeared, through counsel or personally, in the Dominican proceeding. Doris Mayer did testify that Fred Crumpler signed some "papers" in connection with the Dominican proceeding, but the trial court did not find as a fact...
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