Problems in the enforcement of foreign divorce judgments By Scott C. Colky

We hear on a daily basis the world is getting smaller. We are told we are becoming a global village. Yet an obscure Illinois statute prevents the registration and enforcement of a divorce decree or Judgment for Dissolution of Marriage of a foreign country that contains provisions for child support and/or maintenance. The courts of the State of Illinois lack subject matter jurisdiction to enter any orders regarding child support or maintenance if the parties were divorced outside the United States.

Foreign judgments and foreign money claims are given full faith and credit if they fall into a category prescribed by Statute under the Foreign Judgments and Foreign Money Claims, section 12-618 through 12-626 of the Code of Civil Procedure of the State of Illinois. Section 12-618 specifically excludes judgments for support in matrimonial or family matters from the scope of the Act.

Section 12-618 states:

(b) Foreign Judgment

Means any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine, or other penalty, or a judgment for support in matrimonial or family matters. (emphasis added) 735 ILCS 5/12-618 (West 2000).

The appellate court in 1995 considered the issue of whether a Judgment of Dissolution of Marriage entered in Denmark in 1978 and which contained provisions for alimony for three years, but made no provisions for child support was enforceable in Illinois and whether the Illinois court could award child support. The parties were married on July 24, 1972 and they had one child born in 1974. In October 1990, the wife enrolled her foreign judgment in Illinois and filed a petition for child support. At the time of filing the wife and child lived in California and the husband in Illinois.

In the case of The Marriage of Constance Snyder v. James Snyder, the First District Fifth Division held that the Circuit Court had no subject matter jurisdiction to award child support. The court held that the Dissolution of Marriage and collateral matters such as child support are entirely statutory in origin and nature. Equity courts have no inherent power in dissolution cases, and the jurisdiction of the court in a dissolution proceeding is limited to that conferred by statute.

The appellate courts have reviewed this issue on numerous occasions. Each time they have come to the same conclusion. There is no way to obtain subject matter jurisdiction to register, modify or award support of foreign countries' matrimonial or family judgments.

In re: the Marriage of Paraskevas Agathos and Diamondo Bakatselos, 194 Ill.App.3d 168, 550 N.E.2d 1161, 141 Ill.Dec.115 (Jan.24,1990 lst Dist.3d Div.). The parties were divorced in Greece on February 26, 1988. In November of 1988, an ex-parte order was granted to the Petitioner granting him temporary custody of the parties' child, and he traced the Respondent and the child to Chicago. In November of 1988, Petitioner filed certified copies of the Greek orders, together with translations of those Orders, along with petitions in the Circuit Court of Cook County, Illinois. On February 3, 1989, the circuit court entered an order registering the Greek orders under the Uniform Money Judgments Act. The order also granted Respondent leave to respond to the petitions filed with the court. In April, the circuit court entered an order denying Respondent's Motion to Vacate the previous order registering, recognizing and granting comity to the custody orders entered in Greece, and finding in granting comity the Court of Cook County had no further subject matter jurisdiction to modify those orders. The court also made the Rule 304(a) finding, "That there was no just reason to delay enforcement of Appeal."

On Appeal, the appellate court stated:

Clearly the trial court erred in basing its registration of these decrees on the U.E.F.J.A. Judgment of foreign countries cannot be registered under that Act, Zalduendo v. Zalduendo, (1977), 45 Ill.App.3rd, 849 360 N.E.2d 386. Illinois case law also supports Respondent's contention that the Circuit Court's reliance on comity was misplaced. Illinois Courts have long held that comity cannot be the basis for enforcement of foreign countries matrimonial judgments. Clubb v. Clubb, (1949) 402 Ill.390, 84 N.E.2d 366; Hager v. Hager, (1971) 1 Ill.App.3d 1047, 274 N.E.2d 157; In re: the Marriage of Mullins, (1985) 135 Ill.App.3d 279, 481 N.E.2d 322.

In the Agathos v. Bakatselos, the court did recognize that Illinois' courts have authority and subject matters jurisdiction to hear child custody matters under the Uniform Child Custody Jurisdiction Act, but stated explicitly that the Uniform Foreign Money/Judgments Recognition Act is not an appropriate method to register a foreign decree.

In Zalduendo v. Zalduendo, 4 Ill. Dec. 450, 45 Ill.App.3d 849, 360 N.E.2d 386, the appellate court looked for and found a way around the prohibition of the Uniform Foreign Judgments and Foreign Money Act.

In this case an ex-wife sought to have child support awarded where the Cuba divorce decree had been silent on the issue. The appellate court drew a distinction between registering a foreign decree of divorce and recognizing it. The appellate court stating as a matter of comity, Illinois could recognize how the decree affected the status of the parties. The court went on to state "that if a court of this state could recognize a foreign decree and to enforce its provisions there must be some other jurisdictional basis to sustain an award of child support." Zalduendo, 360 N.E.2d at 390.

The court then did an analysis and determined since the Cuban judgment could not be registered (although recognized) the court had no subject matter jurisdiction to award child support. However the court went on to state that there existed a remedy under common law and the plenary powers of equity courts over minors to award child support existed. Thus with tortured legal reasoning the appellate court found a method to deal with an unjust statute that prohibits courts from awarding support if the parties' were married in another country.

However, the Snyder case decided in 1995 explicitly rejected the tortured reasoning of Zaluendo, supra, and every case in Illinois since Zaluendo has found a lack of subject matter jurisdiction to register or modify a foreign divorce decree.

As the world gets smaller, we are going to see many more foreign divorce decrees in Illinois. No tortured reasoning will let us escape that section 12-618 of the Code of Civil Procedure needs to be amended so that children whose parents divorce outside the United States can be supported in Illinois.