Will of Brown

• Decision Date: 07 July 1986
• Citation: 505 N.Y.S.2d 334,132 Misc.2d 811
• Parties: In the Matter of the Petition of Kye Suk Brown as Executrix under the WILL OF Matthew J. BROWN, Deceased, For a Determination as to the Validity of the Election Filed by Dosie Mae Brown. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 334

505 N.Y.S.2d 334

132 Misc.2d 811

In the Matter of the Petition of Kye Suk Brown as Executrix under the WILL OF Matthew J. BROWN, Deceased For a Determination as to the Validity of the Election Filed by Dosie Mae Brown.

Surrogate's Court, Kings County.

July 7, 1986.

Daniel A. Cohen, New York City, for petitioner, Kye Suk Brown.

Joseph Fuchs, Brooklyn, for respondent, Dosie Mae Brown.

BERNARD M. BLOOM, Surrogate.

This is a proceeding instituted by Kye Suk Brown as executrix under the will of her purported husband, for a decree adjudging the invalidity of a right of election asserted by respondent, Dosie Mae Brown.

A hearing on the matter was held before a senior law assistant-referee at which time it was established that decedent and respondent were married in Mississippi in 1934 and moved to this state in 1946, accompanied by the children that had been born to them. Shortly thereafter, Mr. Brown became a civilian employee of the United States Government abroad. After his initial assignment in Japan, he transferred in 1952 to Korea, where he worked at the Army's post exchange in Seoul. In 1961, after having worked there for some eight to nine years, during which time his visits to see his family were exceedingly few and far between, he filed for divorce in a division of the District Court of Seoul.

Some months later, a three judge panel issued its decision setting forth in detail the evidence that had been presented and finding thereon that Dosie Mae Brown had been guilty of marital fault, including the squandering of support monies and threats of divorce and of bodily harm, which was deemed sufficiently destructive of their relationship to entitle the plaintiff to a dissolution of their marriage. The decree was signed on January 26, 1962 and became final, no appeal having been taken, on February 10, 1962.

Dosie Mae Brown did not appear in the proceeding either in person or by attorney despite the fact, according to petitioner here, that notices of the commencement and progress of the foreign action were directed to her. Respondent acknowledges that on perhaps three occasions around the time in question, papers written entirely in oriental characters that she took to be in the Chinese or Korean language were brought to her home. The first of these (which, presumably, consisted of the summons in the action which is recited in the court's decision to have been delivered to her), she took to an office of the Legal Aid Society, where an attorney reportedly told her that legal papers in a foreign language unknown to her could safely be ignored but, nevertheless, advised her to refuse to accept service of any other such document in the future. Although she states that she followed the advice she had been given and never obtained a translation, she surmised the subject matter because her husband's mother had told her beforehand that he planned to seek a divorce.

On March 5, 1962, a vice-consul of the United States performed a ceremony at the mayor's office of the City of Seoul ostensibly uniting Matthew J. Brown and petitioner, Kye Suk Brown, in wedlock after having been apprised that the groom's previous marriage to Dosie Mae Brown had been declared terminated by decree of a local court. A daughter, Juliana Brown, was born the following year, who would prove to be the sole child of their union.

It was not until 1968 that decedent and his second family left Korea bound for Bangkok, the final post of his foreign service career. Upon his retirement two years later, he joined Kye Suk Brown and their daughter, who had been admitted to this country the previous year.

On October 31, 1979, he executed the testamentary instrument later admitted to probate by this court in which he bequeathed his entire estate to Kye Suk Brown, whom he identified as his wife. Mention was made therein of respondent both by name and by description as his "former wife" in a clause the purpose of which was to expressly exclude her and any of his children from taking any share of his estate except Juliana, who was named sole legatee in the event that her mother should predecease him.

Dosie Mae Brown maintains on several grounds that she remained Matthew J. Brown's lawful wife until his death on October 15, 1982 and is thus entitled to her elective share of his estate. She contends that the Republic of Korea was without power to adjudicate the marital status of an American citizen in the employ of his government such as her husband and, in any case, that the decree of divorce is void as against her because she was not served personally with process within the jurisdiction of the court nor did she submit to its jurisdiction or acquiesce in the court's judgment and that such service as was made upon her consisting of documents in a foreign language which she was unable to understand was inadequate.

The petitioner, for her part, argues that the Korean decree meets the established tests for recognition by this state and, in the alternative, that respondent is equitably estopped from raising its invalidity by reason of her failure to seek a declaratory judgment or to use any other available avenue to vindicate her supposed rights in the more than twenty years that elapsed between the date of the judgment and decedent's death.

It is well established in American law that, subject to possible obligations imposed by treaty between the United States and a foreign power, there is no constitutional obligation upon a state to recognize a judgment rendered by a court of another nation. But, with due regard to international duty and convenience, and the sense that respect is due to the judicial act of another sovereign, comity, that is, voluntary deference, is customarily accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that in the foreign tribunal there was a jurisdictional predicate in the procedural due process sense and that the public policy of the particular State is not thereby contravened. Should the decree fail to meet these criteria, it will not be recognized as such. Nevertheless, in the divorce context, a spouse at whose behest or with whose connivance or acquiescence the decree was procured may be equitably estopped from attacking it, as may even one aggrieved by it whose subsequent conduct induced the other to change his or her position in reliance thereon. (See generally Foster & Freed, 1 Law and the Family, § 9:20, § 9:24 [1972]; Juenger, "Recognition of Foreign Divorces--British and American Perspectives", 20 Am.Jour.Comp.Law 1 [1972]; 24 Am.Jur.2d "Divorce and Separation," § 1104, §§ 1106-1109; 48 N.Y.Jur.2d "Domestic Relations," §§ 1484-1490).

No treaty in force between the United States and the Republic of Korea has any bearing on the case at bar.

With respect to the laws of Korea pertaining to the acquisition of a jurisdictional predicate over proceedings for divorce, no direct proof was offered and the decision of the foreign court does not, in so many words, set forth such jurisdictional predicate. But as it plainly recites that the spouses had been married in the United States, that each remained a citizen thereof, that the petitioner husband's presence in Korea was occasioned by his employment as a civilian attached to an American military base and that the defendant wife resided at a certain Brooklyn, New York address where process in the action had been served, it can fairly be inferred that none of those facts precluded entertainment of the action as a matter of Korean law. Presumably, a prospective plaintiff's domicil, or, as is more likely given the fact that domicil is a notion of the common law not widely shared around the world (Juenger, "Recognition of Foreign Divorces," supra, at 19), residence, within the domain for some length of time was deemed sufficient to invoke its courts' authority and that it was on such basis that an action to terminate decedent's marriage to Dosie Mae Brown was accepted.

Our concept of "domicil," of course, signifies the place where one has his true, fixed and permanent home and to which, whenever absent, he has the intention of returning and from which he has no present intention of moving. ("Domicil," 25 Am.Jur.2d § 1 [1966] ). The term "residence" is less inclusive, importing merely having an abode at a particular place which may be one of any number of such places at which one is, at least from time to time, physically present. Thus residence, together with the requisite intent, is necessary to acquire domicil, but actual residence is not necessary to preserve a domicil once it has been acquired. (Id., § 4)

Domicil has often been spoken of by American courts as if it were the sine qua non of jurisdiction to hear proceedings for the termination of marriage. (See, e.g., Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 [1975]; Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 93 L.Ed. 957 [1949]; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429 [1948]; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 [1945]; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804 [1901]; Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794 [1901] ) Typical of such expressions is that of Justice Frankfurter for the Court in Williams v. North Carolina:

Under our system of law, judicial power to grant a divorce--jurisdiction, strictly speaking--is founded on domicil. Bell v. Bell, 181 U.S. 175 [21 S.Ct. 551, 45 L.Ed. 804], Andrews v. Andrews, 188 U.S. 14 [23 S.Ct. 237, 47 L.Ed. 366]. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives...