Nahar v. Nahar

• Decision Date: 07 June 1995
• Docket Number: A-J,No. 91-1729,91-1729
• Citation: 656 So.2d 225
• Parties: 20 Fla. L. Weekly D1356 Glenda NAHAR, individually and Glenda Nahar, as guardian for Catarina Sharisa Nahar, Carlos Sharief Nahar, and Alexander Lucien Nahar, Appellants, v. Oral Mildred Jap-oe NAHAR, Kenneth Iwan Nahar, Franceline Cornelia Nahar, Corrine Adeline Nahar, Robert Armand Nahar, and Herman Bertus Nahar, Appellees.
• Court: Florida District Court of Appeals

Page 225

656 So.2d 225

20 Fla. L. Weekly D1356

Glenda NAHAR, individually and Glenda Nahar, as guardian for

Catarina Sharisa Nahar, Carlos Sharief Nahar, and Alexander Lucien Nahar, Appellants, v. Oral Mildred Jap-A-Joe NAHAR, Kenneth Iwan Nahar, Franceline

Cornelia Nahar, Corrine Adeline Nahar, Robert

Armand Nahar, and Herman Bertus Nahar, Appellees.

No. 91-1729.

District Court of Appeal of Florida,

Third District.

June 7, 1995.

Alfred Aronovitz, Daniels & Talisman, Glen E. Smith, Miami, for appellants.

Cypen & Cypen, Miami Beach, Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel Eaton, Mark Dienstag, Miami, for appellees.

Sandler, Travis & Rosenberg and Edward M. Joffe and Russell E. Carlisle, as amicus curiae for the International Law Section of the Florida Bar.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, JORGENSON, COPE, LEVY, GERSTEN, GODERICH and GREEN, JJ.

BARKDULL, Judge.

On motion for rehearing en banc granted, we hereby withdraw our previous opinion dated June 15, 1993, and substitute the following.

Appellant, Glenda Nahar, widow of decedent Roebi Nahar, and the couple's minor children, seek review of a final summary judgment entered in favor of appellees, Roebi Nahar's six adult children by a previous marriage, which ordered transfer of Roebi's six Florida bank accounts to Aruba, in the Netherlands Antilles, to be disposed of in accordance with Dutch law ¹ and which ordered payment of administration fees and costs from one of those Florida accounts.

Roebi and Glenda Nahar were married in March of 1977. Prior to their wedding Roebi and Glenda appeared before a Civil Law Notary in Aruba ² for the purpose of entering into an antenuptial agreement. That agreement provided that no community property would exist between the parties and that each party would keep whatever he or she contributed to or acquired during the marriage.

On May 15, 1984, Roebi, a Surinami national, ³ died intestate in Miami, Florida, U.S.A. Roebi was survived by his widow, Glenda, their three minor children, and six adult children by a prior marriage. At the time of his death, Roebi, Glenda and the couple's three minor children resided in Miami, in a home owned by Roebi and Glenda. Roebi's six adult children resided in Aruba and other Dutch Territories. At the time of Roebi's death, he held six bank accounts in Miami, Florida, with deposits totalling $657,761.28 Dollars U.S. ⁴ On May 24, 1984, nine days after Roebi's death, Glenda effectively closed five ⁵ of the six Florida accounts by withdrawing the balances, which totaled $514,345.50.

Roebi's adult children petitioned the Aruban Court of the First Instance to have Roebi's Aruban properties and the Florida bank accounts, but not the Miami real estate, administered under the law of the Netherlands Antilles. The adult children alleged that Roebi and his family only resided in Miami temporarily and that their actual permanent place of residence was in Aruba. Glenda appeared and argued that Roebi was not a domiciliary of Aruba, that Dutch law did not apply and that the Florida accounts were outside any probate proceedings. The Court of the First Instance ordered Glenda to deposit the money from the Florida accounts with a Notary for safekeeping pending settlement of the estate. Glenda failed to comply with this order.

Roebi's adult children then petitioned for ancillary administration in Florida, seeking to have the money from the Florida accounts transferred to Aruba for distribution pursuant to Dutch law. ⁶ Glenda appeared and argued that the Florida bank accounts and Miami real estate had passed by operation of Florida law to her and her minor children and thus were outside of any probate proceeding. The Florida court stayed the ancillary proceedings pending decision by the Aruban court on the previously filed petition for administration. The adult children then sought to enjoin Glenda from depleting the money from the Florida bank accounts and from disposing of the Miami real estate. The trial court granted an injunction that required Glenda to deposit the money from the Florida bank accounts into the trial court, and prohibited her from disposing of the Miami real estate.

Meanwhile, in the Aruban action, Glenda was ordered to transfer the money from the Florida accounts to Aruba. From that order Glenda appealed, lost and appealed again to The Court of Cassation of the Netherlands. ⁷ The Hague ruled that Dutch law, not Florida law, controlled Roebi's estate and that the money from the Florida accounts was presumptively an asset of the estate. The Hague remanded the case to the Aruban court for further proceedings.

Glenda then filed a petition, in the Florida action, seeking to revoke probate and both sides moved for summary judgment. Roebi's adult children argued that Glenda was bound by The Hague's decision and that Dutch forced-heirship law was controlling. Glenda argued that Florida law was controlling and that by operation of Florida law the accounts had passed to her and her minor children outside of any probate proceedings. The trial court found The Hague's decision to be res judicata and entered final summary judgment in favor of Roebi's adult children. Thereafter, the trial court ordered that the money from the six Florida bank accounts, after payment of administrative fees and costs incurred in the Florida proceedings, be delivered to Roebi's estate in Aruba to be disposed of in accordance with Dutch law. In order of summary judgment made no express findings regarding the Miami real estate. From that summary judgment Glenda appeals.

We recognize that the final judgments of, and certain interlocutory orders by, the highest court of a foreign nation are entitled to comity. See and compare Metropolitan Investment Corp. v. Buchler, 575 So.2d 262 (Fla. 3d DCA 1991); Cardenas v. Solis, 570 So.2d 996 (Fla. 3d DCA 1990), review denied, 581 So.2d 163 (Fla.1991); Belle Island Inv. Co., Ltd. v. Feingold, 453 So.2d 1143 (Fla. 3d DCA), cause dismissed, 459 So.2d 1039 (Fla.1984); Restatement (Second), Conflict of Laws, Sec. 98 (1988). See also Sec. 732.702, Fla.Stat. (1991). But see Sanchez v. Sanchez De Davila, 547 So.2d 943 (Fla. 3d DCA), review denied, 554 So.2d 1168 (Fla.1989) (distinguishable due to the antenuptial agreement between deceased and his future wife); Sec. 655.55 Fla.Stat. (1988). ⁸

This court, in Cardenas v. Solis, 570 So.2d 996 (Fla. 3d DCA 1990), stated that:

[I]t is well settled that, as a general rule, only the final judgments of courts of a foreign country are subject to recognition and enforcement in this country, provided certain jurisdictional and due process standards are observed by the foreign court; non-final or interlocutory orders of foreign courts, however, are generally not entitled to such recognition or enforcement. See Restatement (Second) Conflict of Laws Sec. 98 comment c (1971).

Cardenas, at 998 (citations omitted) (restatement revised in 1988; comment c moved to comment d).

Nonetheless, the Cardenas court held that a Guatemalan temporary injunction issued in a domestic relations case would be enforced under principles of comity because it was one of the "limited exceptions to the general rule" and because enforcement could be based upon "compelling public policy reasons." Id., at 999. The Cardenas court then enunciated two areas where foreign interlocutory orders should be recognized: (1) creditors rights and (2) spousal and childrens' rights in a domestic relations case. Id., at 999. Accordingly, the Cardenas decision left substantial room under the principles of comity, for a foreign decree that is less than final to be acknowledged or ignored. Implicitly the Cardenas decision established a rule requiring the court to analyze each foreign order on a case by case basis prior to granting comity. It seems however that, rather than trying to analyze each foreign order on the basis of whether it is final and entitled to comity, non-final not subject to an exception and not entitled to comity, or non-final subject to an exception and entitled to comity, the better approach is to follow the Restatement (Second), Conflict of Laws, approach in it entirety. ⁹

Sections 92 & 98 of the Restatement suggest that almost all foreign decrees should be granted comity:

Sec. 98. RECOGNITION OF FOREIGN NATION JUDGMENTS

A valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as the immediate parties and the underlying claim are concerned.

Comment:

a. Valid Judgment. The rule of this Section is limited to valid judgments, that is, to judgments which meet the requirements of Sec. 92....

To aid the reader in determining which "judgments" are to be considered "valid" and thus entitled to comity the Restatement states:

Sec. 92. REQUISITES OF A VALID JUDGMENT

A judgment is valid if

(a) the state in which it is rendered has jurisdiction to act judicially in the case; and

(b) a reasonable method of notification is employed and a reasonable opportunity to be heard is afforded to persons affected; and

(c) the judgment is rendered by a competent court; and

(d) there is compliance with such requirements of the state of rendition as are necessary for the valid exercise of power by the court.

Comment:

a. Meaning of "judgment." As used in the Restatement of this Subject, "judgment" is a general term which includes not only judgments at law but also the orders, injunctions or decrees of equity courts, and the judgments of probate courts, admiralty courts and other special courts....

Consequently, it appears that any foreign decree should be recognized as a valid judgment, and thus be entitled to comity, where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction and where the foreign decree does not offend the public policy of the State of Florida. See and compare...