Full Faith and Credit Clause Does Not Apply to Foreign Decrees; Family Court Has Discretion to Grant International Comity to Foreign Decree – Published Opinion from Supreme Court of Ky.

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Iqtaifan v. Hagerty

Jefferson Circuit Court

Questions Presented: Family Law. Foreign Judgments. Writ of Mandamus. Opinion of the Court affirming the Court of Appeals’ denial of a writ of mandamus against family court judge for failure to dismiss a petition for dissolution of marriage on grounds that the parties were already divorced under the laws of the Kingdom of Jordan. Court held that appellant/real party in interest was not entitled to writ relief of any kind, and specifically held that the family court was not acting outside its jurisdiction by not automatically giving full faith and credit to a divorce decree from a foreign country under the Full Faith and Credit Clause of the United States Constitution. Family court had jurisdiction and discretion to grant comity to the foreign decree, if appropriate in the judgment of the family court.

The parties were married in the Kingdom of Jordan and subsequently moved to Jefferson County, Kentucky. Wife later filed for dissolution of their marriage. Throughout the proceedings, Husband asserted in court documents that the parties were married. However, in his response to the petition for dissolution of marriage, Husband asserted that the parties were divorced by a Jordanian court prior to the filing of the petition when the parties traveled to the Kingdom of Jordan for vacation, where the wife’s participation is not required, and the husband must only state three times that he is divorcing his wife. Husband subsequently filed a “Certificate of Divorce” from the Kingdom of Jordan. Wife asserted that she had no knowledge of the divorce, and that it would have been nullified anyway, because Husband continued to allow Wife to perform “wifely duties” during Idda, the three-month period following a Muslim husband’s proclamation of divorce during which a husband may cancel the divorce by either announcing that he and his wife are married again or by having his wife perform “wifely duties” for him. Furthermore, Husband stated numerous times in court documents that the parties were married. Husband moved to dismiss the petition for dissolution of marriage, which Family Court overruled. Husband later renewed his motion to dismiss, which was also overruled. Husband subsequently petitioned for a writ of mandamus in the Kentucky Court of Appeals, seeking to compel Family Court to dismiss the petition. The Court of Appeals denied the writ. Husband appealed to the Supreme Court of Kentucky.

There are two classes of writs, and Husband was not entitled to a writ under either class. Under the first class, the petitioner must show that the lower court is proceeding or is about to proceed outside its jurisdiction and there is no remedy through appeal. Husband argued that that there was no adequate remedy by appeal because he would have to wait until the conclusion of the case after spending a large sum of money before having a right of appeal. Kentucky jurisprudence is clear that inconvenience, expense, annoyance, and other undesirable aspects of litigation do not satisfy the requirement to demonstrate great and irreparable injury. This does not demonstrate a lack of adequate remedy on appeal.

Husband argued that Family Court did not have authority to allow the petition to proceed because the parties were already divorced in the Kingdom of Jordan. Assuming that the parties were divorced in the Kingdom of Jordan, Family Court was not required to acknowledge or enforce that decree. The Full Faith and Credit Clause requires that full faith and credit be given “in each State to the public Acts, Records, and judicial Proceedings of every other State.” Thus, it requires a state to honor only the laws and judicial proceedings of a sister state, and Family Court was not required to honor the decree. The decree was entitled only to a consideration of international comity, the recognition which one nation allows within its territory to the legislative, executive, and judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws. Trial courts have discretion whether to afford international comity to a foreign decree. The Court of Appeals addressed the issue, and it was not an abuse of discretion.

Under the second class of writs, the petition must show that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no remedy by appeal or otherwise, and it usually requires a showing that great injustice and irreparable injury will result if the petition is not granted. Husband argued that Family Court acted erroneously because it refused to give full faith and credit to the Jordanian divorce decree, but decrees of a foreign nation are not entitled to full faith and credit. Husband argued that he lacked an adequate remedy by appeal due to the expense of litigation, but the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice. The Court of Appeals correctly addressed the arguments.

Digested by Nathan R. Hardymon

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