VP-13-3521
Decided by the Board February 1, 1954
Marriage — Validity of second marriage in California where earlier marriage terminated by Mexican divorce — Nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act.
Under California law a divorce valid in a foreign jurisdiction is valid in California. Therefore, a divorce obtained in Mexico, and valid in that jurisdiction, by a resident of California from her spouse, a nonresident of that State, who was not present at the proceedings but was represented by counsel and who gave his written consent to the divorce, is valid in California. Sections 150.1 and 150.2 of the Uniform Divorce Recognition Act of 1949 do not apply since only one party to the marriage was domiciled in California at the time the divorce proceeding commenced. Therefore, the petitioner's second marriage is valid under the laws of California and the beneficiary is entitled to nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act.
BEFORE THE BOARD
Discussion: Appeal has been taken to this Board from an order entered August 13, 1953, denying a visa petition filed in behalf of the husband of the above-captioned petitioner whom she married at San Francisco, Calif., on February 24, 1953. Exceptions have been taken to the finding of the ineligibility under section 101 (a) (27) (A) of the Immigration and Nationality Act of 1952.
The issue presented on appeal concerns the validity of petitioner's divorce from her first husband which was granted on February 7, 1953, by the citizen judge of first instance, at Tixtla, Guerrero, Mexico. The district director at San Francisco concludes that under the provisions of sections 150.1 and 150.2 of the California Civil Code (Statutes of 1949, ch. 1292, p. 2275) petitioner's marriage to her first husband was not legally terminated prior to her marriage to the beneficiary and therefore the beneficiary is not the spouse of a United States citizen.
The Attorney General in a recent decision concerned with the validity for immigration purposes of a subsequent marriage where an earlier marriage had been terminated by a divorce secured in Mexico "in absentia" while both spouses were residents of the United States stated the applicable rule of law to be "The validity of a marriage is governed by the law of the place of celebration." Matter of P----, 56324/762, Atty. Gen. March 18, 1952, 4 IN Dec. 610. The Attorney General expressly overruled a former decision to the extent inconsistent with the foregoing generally accepted rule of law. (See Matter of O----, A-6345409, 3 IN Dec. 33, Atty. Gen. Sept. 16, 1949). Accordingly, California law controls in the instant case.
The petitioner testified that she resided from January 30 or 31 until February 7 of 1953 at Tixtla, Mexico; that her permanent residence was at San Francisco and that the purpose of the trip to Mexico was to secure the divorce in question. There is a showing of record that petitioner has been separated from her first husband for 6 years; that he was not a resident of California at the time the divorce was secured; that he was given due notice of the pending action; that he (first husband) gave his written consent to the divorce, and that he was represented by counsel during the Mexican proceeding. (Petitioner's letter of August 26, 1953, and copy of the divorce decree entered as exhibit.)
The district director relies on section 150.1 and 150.2 of the California Civil Code in reaching his conclusion that petitioner's decree of divorce is not valid in the State of California. The Uniform Divorce Recognition Act, enacted by the California state legislature in 1949, prohibits recognition of foreign divorce decrees where both parties were California domiciliaries at the time of the proceedings. It appears therefore that the Uniform Divorce Recognition Act may not be controlling since there is a showing that only one of the parties to the Mexican proceeding was domiciled in California at the time of the Mexican decree.
Uniform Divorce Recognition Act of 1949 (ch. 1292, p. 2275, Statutes of 1949) Sec. 150.1-A divorce obtained in another jurisdiction shall be of no force or effect in this State, if both parties to the marriage were domiciled in this State at the time the proceedings for the divorce was commenced. Sec. 150.2. This section provides that a presumption of domicile is raised if the party obtaining the divorce was domiciled in California within 12 months prior to the action and resumed residence within 18 months afterwards, or if a residence has been maintained during the absence.
The California Supreme Court has never directly ruled that domicile is a necessary requisite for recognition of foreign country divorce decrees. The court in the case of Rediker v. Rediker, 35 California 2d 796, 221 Pacific 2d 1, decided on August 18, 1950, subsequent to the enactment of the Uniform Divorce Recognition Act ( supra) relied upon section 1915 of the California Code of Civil Procedure to find a Cuban decree valid on the ground that under Cuban law the Cuban court appeared to have jurisdiction to enter the decree and since there was no showing of fraud or collusion the decree must be given "the same effect as a final judgment rendered in this State." The Rediker case (supra) in effect holds that a Cuban decree granted by a court which satisfied all the jurisdictional requirements of Cuban law would be entitled to as much force and effect in California as the decree of a sister State, even though the action was not brought at plaintiff's domicile. In other words, a decree valid in Cuba would be valid in California, in the absence of fraud or collusion. It is significant to note that although the Uniform Divorce Recognition Act had recently been enacted the supreme court made no reference to it in the Rediker case.
Sec. 1915, Code of Civil Procedure, California: A final judgment of any other tribunal of a foreign country having jurisdiction, according to the laws of such country, to pronounce the judgment, shall have the same effect as in the country where rendered, and also the same effect as final judgments rendered in this State.
We find no judicial interpretation of the Uniform Divorce Recognition Act by California courts to the effect that the requirement of domicile stated therein is a jurisdiction restriction upon the application of section 1915 of the Code of Civil Procedure to foreign country divorces. In fact the weight of authority is to the contrary. Residence in California is not jurisdictional and efforts to set aside California divorce judgments by reason of noncompliance with section 128 of the Civil Code have repeatedly failed. Implicit in section 1915 ( supra) is the requirement that the laws of the country where the decree was rendered are to be controlling in determining whether their judgments shall be given the same effect as one rendered in California. In this connection the California Supreme Court has said, "There is no allegation or proof that a judgment in Mexico has any greater force than a judgment in this State." All that the court was required to do, therefore, was to give the Mexican judgment the same force to which a California judgment would have been entitled.
The case of Union Bank et al. v. Gordon, 116 C.A. (2d) 681, March 13, 1953, merely held that the Uniform Divorce Recognition Act of the Civil Code does not prevent the application of the rule of estoppel.
Sec. 128 of the California Civil Code requires the plaintiff in a divorce action to have been a resident of the State for more than 1 year and of the county in which the complaint was filed for more than 90 days immediately preceding the date of the filing of the action.
Estate of McNeil, 155 Calif. 333, 340, 100 Pac. 1086, 1089 (1909); Hamblin v. Superior Court, 195 Calif. 364, 373, 233 Pac. 337, 341 (1925); Kelsey v. Miller, 203 Calif. 61, 87, 263 Pac. 200, 211 (1928).
Title Insurance Company v. California Development Company, 171 Calif. 173, 208. 152 Pac. 542, 557 (1915).
The only evidence before us on the issue of jurisdiction is the petitioner's testimony and the recital in the Mexican decree. There is also a showing that the petitioner's first husband was not domiciled in California at the time of the Mexican proceeding; that he was given due notice of the contemplated action in Mexico and was represented by counsel. We find on the basis of the record before us and the foregoing authority that the divorce obtained by petitioner at Tixtla, Guerrero, Mexico, on February 7, 1953, and her subsequent marriage in the State of California are not subject to collateral attack under the laws of the State of California. Our position is supported by Justice Traynor's comments in the Rediker case ( supra) upon the public policy of the State of California. Relative to the recognition of foreign divorces he said: "It can no longer be said that public policy requires nonrecognition of all irregular foreign divorces * * *. We conclude that the public policy of this State requires the preservation of the second marriage and the protection of the rights of the second spouse, `rather than a dubious attempt to resurrect the original' marriage." Accordingly we conclude that petitioner's second marriage is valid and subsisting under the laws of the State of California and that the beneficiary is entitled to nonquota status under section 101 (a) (27) (A) of the Immigration and Nationality Act of 1952 as the spouse of a United States citizen. An appropriate order will be entered.
To the same effect is the recent statement of Justice Schauer of the California Supreme Court when he said: "The public policy of this State, in the circumstances of this case as in those considered in Rediker v. Rediker ( supra) requires recognition of the second marriage rather than the `dubious attempt to resurrect the original' marriage." Dietrich v. Dietrich, 41 Adv. Calif. Reports 509, 516, 517, 261 Pac. (2d) 269, 273, September 25, 1953. See also Watson v. Watson, 39 Calif. (2d) 305, 307, 246 Pac. (2d) 19 (1952).
Order: It is directed that the appeal be and the same is hereby sustained; the visa petition filed pursuant to section 205 (b) is hereby approved.