International JURISDICTION in Family Matters and Recognition /
Order of Enforcement of Judgments, Universal and in Family Matters
(specifically relating to FRG - USA)

INTERNATIONAL JURISDICTION in Family Matters

1. Preliminary Analysis: Do the facts of the case relate to foreign countries?
If so ¯

2. Existence of any International Treaties?

-- basically no regarding for matters involving USA - FRG

-- however, the Hague Convention concerning the Jurisdiction of
Authorities and the Law Applicable in Respect to the Protection of Minors,
whenever applicable, displaces jurisdiction derived from the divorce-related
matters (Federal Supreme Court/Family Law Gazette 1984/350.353). Unlike
Germany, the USA did not join this Convention,; this is immaterial, as
Germany has not restricted her scope of application.

--The question of whether the court residing in a country wherefrom a minor child was abducted is competent to rule on child custody or whether it must suspend the proceedings, involves the Hague Convention on the Civil Aspects of International Child Abduction. USA as well as the FRG are member countries
of this Convention.

The Brussels EMF Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, does not apply, as family matters are exempt
from its scope of applicability and the USA is no member of this Convention.

In cases of international treaties (=) ¯

3. Autonomous Provisions in the FRG

a) Basic rule: "Local jurisdiction indicates international jurisdiction."

b) Exceptions:

Matrimonial Causes, Section 606 a I, [German] Code of Civil Procedure

If respondent is a foreign citizen -[his/her] foreign country has jurisdiction

Otherwise adjusted to "habitual residence" , i.e., the center of existence and not a mere
temporary abode but the center of existence constituting an individual's bond, especially
with family and occupation ([German] Federal Supreme Court New Weekly Law Journal 1975/1068)
It suffices for one of the spouses to have his/her center of existence in Germany, to justify international jurisdiction of a German court.

Center of existence in Center of existence in
USA Germany
----------------------- ------------------------
USA has jurisdiction Germany has jurisdiction

Ancillary Consequential Matters of a Divorce (sections 623 I, in conjunction w/ 621 II, p. 1, in conjunction w/ 606 a, Code of Civil Procedure)

International jurisdiction over matrimonial causes extends to international jurisdiction over ancillary consequential matters of divorce (e.g. custody, pensions) (so-called divorce-related matters).

A break-through is possible pursuant to the Hague Convention concerning the Jurisdiction of Authorities and the Law Applicable in Respect to the Protection of Minors, if it involves the distribution of custody between both parents over a minor child
whose habitual residence is located in a member state (like Germany, for example but not the USA), Federal Supreme Court/Family Law Gazette 1984/350.350

Parent and Child Cases (concerning parent/child [legal] relationships)

See legal text

Guardianship Cases and Family Cases, pursuant to the Act on Matters of Non-Contentious Jurisdiction

Sections 621 a I, p. 1 of [German] Code of Civil Procedure, in conjunction w/section 64
of Act on Matters of Non-Contentious Jurisdiction

International jurisdiction is determined, pursuant to section 35 b, Act on Matters of Non-Contentious Jurisdiction
Declarations of legitimacy are to be determined, pursuant to section 43 a I, Act on Matters of Non-Contentious Jurisdiction
Adoption of a child is determined, pursuant to section 43 b I, Act on Matters of Non-Contentious Jurisdiction

Petitions to Modify Judgment according to section 323, [German] Code of Civil Procedure

Concurrent international jurisdiction of German courts for modification of rulings passed in Germany regardless of whether or not national jurisdiction exists.

Modification of a foreign judgment is acceptable in the FRG, provided the current existence of international jurisdiction (Federal Supreme Court New Weekly Law Journal 1983/1976).

In addition, there exists a national emergency jurisdiction in German courts, especially in the absence of jurisdictional competence on the part of foreign courts.

4. .Jurisdiction by Agreement

pursuant to section 38, [German] Code of Civil Procedure

PROROGATION DEROGATION

Materialization of a jurisdiction agreement is contingent upon the current contractual
Statute..

The procedural admissibility and effect of an agreement is contingent upon lex fori.

Pursuant to section 39, [German] Code of Civil Procedure: Appearance without jurisdictional objection will lead to the granting of jurisdictional cure during the proceeding, provided there exists no opposing exclusive jurisdictional rule.

5. Autonomous Provisions in USA

In the final analysis -- with US jurisdictional provisions being more restrictive than those of the [German] Federal Supreme Court there exist no friction points regarding the determination of international jurisdiction pursuant to German law.

RECOGNITION and Order of Enforcement of Judgments, Universal and in Family Matters

I. Recognition of a US Divorce Decree in Germany

a) According to the Hague Convention concerning the Jurisdiction of Authorities and the Law Applicable in Respect to the Protection of Minors, a simplified recognition proceeding, is possible

b) Autonomous law of the FRG

In a proceeding, pursuant to Article 7, section 1, of the Family Law
Alteration Act, the provisions of sections 328, Code of Civil Procedure
16 a, Act on Matters of Non-Contentious Jurisdiction; 606 a II, Code of
Civil Procedure, were analyzed.

As an exception, an official recognition proceeding was conducted
before the Land Administration of Justice which is located in the
Federal state where minor children have their center of existence
(alternatively, the Land Administration of Justice in Berlin).

Only the administrative finality of the decision passed by the
Land Administration of Justice will determine recognition.

a. Exception: Both spouses were strictly citizens of
the country whose court pronounced the decree

There followed an interlocutory decision by the
Family Court in enforcement proceeding.

Pursuant to section 23, Act for Modification of the Introductory Law to the Judicature Act, the ruling passed by the Land Administration of Justice can be appealed, in which case the Regional Appeals Court will pass the final ruling.

II. Recognition of a Maintenance Order from the USA in Germany

The Hague Convention does not apply in the USA

¯

No formal proceeding is required. Interlocutory analysis of section 328, Code of
Civil Procedure / section 16 a, Act on Matters of Non-Contentious Jurisdiction, for
enforcement proceeding.

III. Enforceability Declaration on a Ruling from USA for Germany

Matters re Code of Civil Procedures

Sections 722, 724, Code of Civil Procedures - action for a change of legal relationship (judgment for enforcement required)

Admissibility of complaint

-- local jurisdiction sections 13 - 19, Code of Civil Procedure,; 23 Code of Civil Procedure
-- jurisdiction re
subject matter according to amount in controversy
-- Need for judicial
remedy if judgment contains enforceable aspects

Merits of a Complaint

If -- there exists a res judicata decree by a foreign court,
n acceptable pursuant to section 328, Code of Civil Procedure,
n and there are no admissible and reasonably substantiated objections asserted
against the claim, pursuant to section 767, § II, Code of Civil Procedure

Matters of Non-Contentious Jurisdiction

Criteria for recognition will be analyzed as a preliminary question to the action,
pursuant to section 33, Matters of Non-Contentious Jurisdiction

Section 722, Code of Civil Procedure -- non-applicable

Section16 a, Matters of Non-Contentious Jurisdiction, for recognition criteria

IV. Recognition and Enforceability Declaration of German Judgments in USA

Introduction:

-- no agreement with Federal Supreme Court
-- law, pursuant to federal legislation, non-existent
-- application of Common- Law principles as a matter of law governing
individual states - limited by federal doctrines (e.g. sovereign immunity)
-- the principle of comity constitutes the premise for each determination
-- rules of procedure in individual federal states were modelled either on Common
Law or Uniform Foreign Money-Judgment Recognition Act (Uniform Act)

Basis for all federal states: Principle of Comity)

--Supreme Court by its ruling on, Hilton versus Guyo

Recognition and enforcement of foreign judgments, if

1. rules of comity are adhered to
2. no essential US interests are sacrificed

Principles of comity: complete and due process of law abroad
before a competent court (competence of a foreign court is to be determined based on the foreign law);
proceedings are conducted based on customary procedural principles (due summons or voluntary appearance of respondent);
governed by a legal system which ensures impartial application of law to its own citizens, as well as citizens of another country;
principle of res judicata - foreign judgment must be absolute in the foreign country and must have become binding between the parties (determined by the laws of the foreign country)

Rules of Interests: Due process of law with respect to judgment debtors, i.e., judgment must not be obtained surreptitiously by unfair means. The following must be ensured:

1. due service of complaint (please note the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters effective for the USA and FRG);

2. opportunity to appear before the court;

3. personal jurisdiction of court (to be determined by US law)

The following must be excluded (public-policy clause):

4. prejudice and unfairness on the part of a foreign legal system;

5. fraudulent judgments by surreptitious means

The reciprocity guarantee is still a problem in several federal states; however, in the final analysis it does not matter, because in relation to Germany it is a given, even pursuant to section 328 I No. 5, Code of Civil Procedure, and adopted by US courts.

In addition, the rules of public policy must be observed (public policy - exception). Examples of such important exceptions are to be found in Uniform-Act rulings.

Proceedings in individual Federal States

Either pursuant to Common Law

(all remaining states)

-- Recognition is informal

-- Obtaining an enforceability declaration requires new action before a competent US court, based on the foreign judgment.

-- Ruling pursuant to summary action (rulings of comity doctrine)

In North Dakota, Arkansas, Louisiana, Pennsylvania, South Carolina & Idaho, the
Principles of the 2nd Conflict of Laws are
Applied. In addition, in Pennsylvania, South Carolina, & Idaho the Principles of Restatement, 3rd Foreign Relations, are applied.

-- Respondent is limited in her defense options

-- No specifics re divorce decrees

Maintenance orders are declared as recognized and declared enforceable pursuant to Common Law principles

Specifics in Pennsylvania, New Hampshire, South Carolina, & Idaho:

All of them adopted the Uniform Reciprocal Enforcement Support Act (RURESA) into their intra-state law (and thru AVG created bases for mutual declaration in related to FRG). In addition, Tennessee, Mississippi, & N.H., transformed the Uniform Child Custody Jurisdiction Act (UCCJA) for Custody Decisions into their intra-state law
(contains provisions on jurisdiction and recognition)

or pursuant to the Uniform Act

(Alaska, California, Colorado, Georgia, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New York, Ohio, Oklahoma, Oregon, Texas, and Washington

Money judgments are enforced in the same manner as judgments by other US courts.

In Alaska, Colorado, Georgia, Texas, Minnesota, Ohio, Oklahoma, Oregon, & Washington, enforcement proceeds by official registration with the appropriate trial court clerk (1964 version of the Uniform Act)

Specifics in New York:
Proceedings leading to a judgment are required, regardless of Uniform Act

In Illinois & Missouri, pursuant to the 1948 version of the Uniform Act by registering with the competent court.

Specifics regarding custody judgments, e.g. in Massachusetts and Minnesota, UCCJA is applicable.

Opening clause pursuant to Uniform-Act rules for maintenance judgments ¯

Recognition is determined pursuant to autonomous law, i.e., pursuant to the comity doctrine.
Specifics re Minnesota: RURESA is applica