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gious court did not review any divorce proceedings, but merely determined for its purposes that a divorce had occurred as alleged.
We consider the authenticity of the Qadi's judgment has not been established sufficiently for us to consider it as official evidence of beneficiary's status as a divorced person.15 The judgment of the religious judge has not been authenticated in a manner acceptable in Federal judicial proceedings.16 The certification of our vice consul in Jerusalem is merely an acknowledgment of execution of the translation of the document. It serves to identify the translator. There is nothing to authenticate the signature of the judge or to certify that he is the official custodian of the record. Although the Federal Rules do not control our proceedings, we may be guided by them.
The Puerto Rican Rules of Civil Procedure of 1913 contained a Rule 44 identical, except for one slight variation, with Federal Rule 44. That rule was not continued in the 1958 edition of the Puerto Rican Rules. Section 431.8 of the Code of Civil Procedure remains in effect, however.17 That section prescribes a form of authentication similar to the provisions of Rule 44. Thus the evidence of the judgment of the religious court in Ramallah is unacceptable in its present form for our purposes and probably would be unacceptable as evidence in a judicial proceeding in Puerto Rico.18
Even if the evidence of this judgment were in proper form, however, more fundamental objections to its evidentiary value arise. Neither of the parties were before the court. Beneficiary's Jordanian wife appeared only by her attorney. The judgment itself is described as a notice in absentia as to the defendant and recites that he had departed to an unknown destination in the United States. Service of the defendant was by publication only, probably by posting a notice at the court or by inserting a notice in the local press. Moreover, no witnesses appeared. The court apparently considered no evidence except the ex parte statements of plaintiff's attorney. The court assumed defendant's concurrence because of his absence.
15 Cf. Chung Young Chew v. Boyd, 309 F. 2d 857 (C.A. 9, 1962); Yaich v. U.S., 283 F. 2d 613 (C.A. 9, 1960); U.S. v. Grabina, 119 F. 2d 863 (C.A. 2, 1941); Balazinski v. Lebid, 65 N.J. Super. 483, 168 A. 2d (1961).
Our order which, because of petitioner's submission of the Court Notice in Absentia, remanded these proceedings antedated the decision in Chung Young Cheu.
14 F.R.C.P. Rule 44. 28 USC 1741.
17 * * * Documents of any other class in a foreign country by the original or by a copy, certified by the legal keeper thereof, under, his seal if he has one, with a certificate of the minister or ambassador, or a consul, vice consul, or consular agent of the United States in such foreign country, to the effect that the document is a valid and subsisting document of such country, and that the copy is duly certified by the officer having the custody of the original. 32 L.P.R.A. Sec. 1803.8.
18 We might consider evidence of this type, however, even though not properly authenticated, if it was accepted without objection into the record in adversary proceedings before a special inquiry officer. Matter of O'Sullivan, Int. Dec. No. 1291.
Under these circumstances, minimum standards of due process of law have not been met. Generally, before extending recognition to foreign judgments, our courts require the judgments to reflect satisfaction of such minimum standards. Even jurisdictions which authorize service by publication in their own proceedings generally require personal service upon a party as a condition for recognition of a foreign judgment.19 Recognition and enforcement of foreign judgments on the basis of international comity are subject to much stronger inhibitions than applications of foreign law in general.20
Even if there is no question about the propriety of the judgment here, proceedings of the type underlying that judgment may be conducive to fraud or collusion. For our purposes—irrespective of formal requirements—the judgment adds little or no probative force to the other evidence of record bearing upon beneficiary's status as a divorced person.
The Puerto Rican Code of Civil Procedure-after providing specifically for foreign courts of admiralty and judgments against a specific thing—provides that in all other cases the judgment of any tribunal of a foreign country, having jurisdiction to pronounce the judgment, is presumptive evidence of a right between the parties and their successors in interest by a subsequent title, and can only be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.21 This provision derived from the California Code of Civil Procedure.22 Such provisions indicate a legislative policy in favor of recognizing foreign judgments. Courts, however, in determining whether a particular judgment will be recognized, are apt to be guided by fundamental legal principles and to give effect to the legislative policy where application of the statutory directive would not conflict with those principles.23 Moreover, the statutes recognize lack of jurisdiction and want of personal service as grounds for possible nonrecognition. We believe a court in Puerto Rico, regardless of any question of compliance with formal requirements of authentication and certification, would not give effect to the Qadi's judgment.
19 People v. Baker, 76 N.Y. 78 (1870)-decree of divorce. Hilton v. Guyot, 159 U.S. 113 (1895). See also 3 Freeman, Judgments Secs. 1497—98 (5th Ed., 1925).
Cheatham, Dowling, Goodrich, Cases on Conflict of Laws 274 (1936).
Sec. 428, 32 L.P.R.A. Sec. 1800. 22 Calif. Code of Civil Proc. Sec. 1915.
» Cf. Lichtig v. Lichtig, 81 P.R.R. 716 (1960); Ponce v. F. Badrena and Hijos, 74 P.R.R. 210 (1952).
See also, R. B. Perez Mercado, Reconocimiento Validez y Medios para hacer Efectiras Sentencias Extranjeras en Puerto Rico, 20 Rev. Jur. U.P.R. 345 (1951); Comment, “Recognition of Foreign Country Divorces : Is Domicile Really Necessary?” 40 Calif. L. Rev. 93 (1952); Note, "Recognition of Foreign Country Divorce Decrees in California," 2 Hastings L.J. 86 (1950).
IV. Validity of the Puerto Rican marriage
Generally, the Supreme Court of Puerto Rico relies upon the principle of nationality, rather than domicile or place of marriage, in choosing the law to be applied to determine the effect of a marriage.24 The nationality rule applies most clearly where both spouses are citizens or both are noncitizens of Puerto Rico.25 Moreover, the cases we have found applied the national law of the noncitizens not to the marriages themselves, which occurred outside Puerto Rico, but to the controversy's subject matter-located within Puerto Rico.
Apparently the application of the nationality principle where one spouse is a citizen and the other a noncitizen of Puerto Rico has not been authoritatively decided. Ordinarily, in such a situation we would expect the court to follow the husband's law—except for Puerto Rican requirements for the form of celebration of the marriage if the marriage occurred there. Quite clearly, however, a Puerto Rican court would not apply beneficiary's national substantive law, which recognizes polygamy.
We are positive, therefore, that, regardless of beneficiary's alien status, and regardless of his domicile, Puerto Rico would apply its own substantive law to the marriage which occurred there, especially since petitioner is Puerto Rican.
Marriage in Puerto Rico is a social institution, regulated and controlled by public authority.26 Puerto Rican statutory provisions ex
24 Cabassa v. Nadal, 23 P.R.R. 691 (1916) ; Antongiorgi v. Registrar of Property, 6 P.R.R. 493 (1904); Cothran v. Registrar of Arecibo, 25 P.R.R. 602 (1917); Los Conflictos De Leyes En Materia De Matrimonio, Inmuebles Gananciales y Divorcio Segun La Doctrina Puertorriquena, 9 Rev. Jur. U.P.R. 95 (1939). For nationals of the United States the court applies a modified nationality doctrine referring to citizens of Puerto Rico or of the individual states.
In our jurisprudence the rule that the place of marriage governs the marriage's validity applies particularly to the celebration of the marriage whereas the law of the domicile frequently affects the validity of the resulting marital status. Ex parte Suzanna, 295 F. 713 (Mass., 1924). 25 Cases cited supra ".
U.S. v. Vega, 3 P.R. Fed. 480 (1908); Bravo v. Franco, 1 D.P.R. 242 (1902); Perez v. Leon, 52 P.R.R. 496 (1938), appeal dismissed 99 F. 2d 851 (1938) sub nom. Leon v. Torruella.
Sec. 68, Civil Code, 1930, 31 L.P.R.A. Sec. 221, provides :
Marriage is a civil institution, originating in a civil contract whereby a man and a woman mutually agree to become husband and wife and to discharge toward
pressly declare that a marriage not contracted and solemnized in accordance with the provisions of law is invalid.27 The Civil Code of Puerto Rico also specifically provides that a marriage is invalid if contracted by a person who is already legally married.28
Moreover, the public attorney may bring an action for a declaration of nullity of a marriage.29 The Puerto Rican Law of evidence contains a presumption that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage, but that presumption may be overcome.30 In any event, as we have seen, such a presumption is inapplicable here. A certified copy of a record of the civil registry constitutes only prima facie evidence of its contents and may be rebutted.31
Although the Puerto Rican Code provisions declaring the invalidity of marriages not complying with the statutory requirements are express and in mandatory terms, the courts have determined whether noncompliance with particular requirements of the statutes renders a marriage void ab initio or merely voidable. The Supreme Court of Puerto Rico, has held, however, that a marriage contracted by a person already legally married is void and not merely voidable.32
The Puerto Rican legislature and Judiciary have each expressed a strong public policy against marriage without termination of a prior marriage. Petitioner has not established that beneficiary has the legal capacity to contract marriage with her. Therefore, on the evidence here, the marriage between petitioner and beneficiary is not valid in Puerto Rico.
The petition depends upon the validity of that marriage. Therefore, it must fail. For the reasons discussed herein, we approve the district director's order denying the petition.
ORDER: It is ordered that the order of the district director denying the petition be, and hereby is, approved.
each other the duties imposed by law. It is valid only when contracted and solemnized in accordance with the provisions of law; and it may be dissolved before the death of either party only in the cases expressly provided for in this title. * Among the requisites for validity of a marriage the Civil Code prescribes :
* authorization and celebration of a matrimonial contract according to the forms and solemnities prescribed by law. Civil Code, 1930, Sec. 69(3), 31 L.P.R.A. Sec. 231(3).
When a marriage has not been contracted according to the requirements of this title, the same is null and void. Civil Code, 1930, Sec. 110. 31 L.P.R.A. Sec. 411.
> Civil Code, 1930, Secs. 69 and 70, 31 L.P.R.A. Secs. 231 and 232.
31 Code of Civil Proc., 1933, Sec. 433, 32 L.P.R.A. Sec. 1805; Estate of Felix Jatos, 63 P.R.R. 72 (1944).
22 Cruz v. Ramos, 70 P.R.R. 681 (1949).
respondent had stated in his answer to Question 10 of the application form, "I have not been charged with a violation of law," the Service also contends that he concealed his criminal record and obtained documentation as a permanent resident by fraud or by willfully misrepresenting a material fact. Since one of the basic requirements for status as a permanent resident under section 245 is that the person applying be admissible to the United States, if the respondent was in fact convicted of a crime involving moral turpitude not classifiable as a petty offense, he was not so admissible.
The respondent was convicted in the Court of Osimo, Province of Ancona, Italy, on January 20, 1951, of the crime of embezzlement, pursuant to Article 646 of the Italian Penal Code and Article 61, No. 11, of the Italian Penal Code. A copy of the record of conviction and the statute are a part of the record. Differences have arisen in the translation of the record of conviction, the translator for the respondent translating it as "embezzlement" and the translator for the Gorernment interpreting the phrase as “misappropriation." Counsel for the respondent wishes to accept the Service translation. According to the Service translation, Article 646 of the Italian Penal Code is entitled "Misappropriation" and provides that "Anyone who, in order to obtain for himself or others an unjust profit, misappropriates money or someone else's property, which he is holding under any condition, is punishable, upon being sued by the offended person, to imprisonment of up to three years and to a fine of up to 10,000 lire.” If the act is committed upon articles held necessarily on deposit (c. 1864.s) the penalty is increased. Legal action will be instituted, if the circumstances indicated in the preceding paragraph apply or any of the circumstances indicated in No. 11 of Article 61 of the Italian Penal Code. Article 61, No. 11, provides that when someone commits the deed with the abuse of authority or domestic relations, or else with abusing relations of office, relation of employment, of cohabitation, or of hospitality.
The translation of the record of conviction against the respondent (Exhibit 5) shows that in the Police Magistrate's Court of Osimo, in penal proceeding against the respondent, he was charged with the crime of aggravated embezzlement, he having misappropriated in order to obtain an unjust profit 24 accordions intrusted to him for business or commercial purposes while he was in the United States, and that he appropriated the money received from the sale of these accordions in the amount of $1421, as a result of which on January 20, 1951, he was convicted of the crime of aggravated embezzlement or misappropriation and was sentenced to two months imprisonment and to 10,000 lire fine plus the payment of the costs of trial; it was further