597 N.W.2d 82 (Mich. 1999)
We granted leave to determine whether the parties' English divorce judgment is entitled to full faith and credit under the principle of comity, and whether res judicata bars the action.
We hold that principles of comity and res judicata mandate that the Darts' foreign divorce judgment be enforced. The English court decided the property distribution issue on the merits, and no evidence was presented showing that plaintiff Katina Dart was denied due process. We affirm the decision of the Court of Appeals.
Plaintiff and defendant were married in 1980 and were residents of Okemos, Michigan until 1993, when they moved to England. The couple owned a large house in Okemos, situated on thirty-nine acres of land, valued at $1,500,000. The parties had two children. The defendant is the son of the founder of Dart Container Corporation, one of the largest family-controlled businesses in the United States. The defendant's earned income for the years 1992, 1993, and 1994, was $313,009, $563,917, and $281,548, respectively. Between 1990 and 1993, the family's annual expenditures ranged from $300,000 to $600,000. The move to England made possible a September 1993 transfer of several hundred million dollars to the defendant from family trusts.
In 1974, before the marriage, the defendant's father established a trust for the benefit of defendant and his brother. For the transfer to occur, defendant had to renounce his United States citizenship and relocate outside the United States. The plaintiff refused to renounce her United States citizenship, and she also refused to renounce the citizenship of the children. She claims that, despite the relocation to London, England, she has always considered herself a resident and domiciliary of Okemos, Michigan.
In 1993, the parties jointly purchased a house near London for £2.75 million, and began renovations that took over a year to complete and cost another £3.5 million. They enrolled the children in the American School of London. Between 1993 and 1995, plaintiff asserts that she and the children made regular trips to Michigan for holidays, medical care, vacations, haircuts and other activities. Also, she maintained her Michigan driver's license and voted regularly in Michigan elections.
In September 1993, defendant received his distribution from the family trust which had a present, net value of £274 million (approximately $500,000,000). In the fall of 1994, plaintiff announced that she wanted a divorce. She revealed that what she had previously described to the defendant as a "one night stand" in 1989 had actually been a regular, adulterous affair with a man in Greece. The plaintiff asserted that she and defendant agreed to postpone the divorce action until she and the children returned to Michigan after the 1994-95 school year.
Despite the putative agreement, defendant filed for divorce in England on February 3, 1995. Plaintiff was served with process at the parties' home the following day. She contacted her American attorneys, and they filed a similar suit on her behalf in Michigan in the Ingham Circuit Court four days later. The parties remained in England until a consent order was entered in the English court on June 9, 1995, allowing plaintiff to return with the children to Michigan.
On March 21, 1995, in the Ingham Circuit Court, defendant moved for summary disposition pursuant to MCR 2.116(C)(4) and (6) on the bases of lack of jurisdiction and pendency of a prior proceeding. Following a hearing, the circuit court determined that jurisdiction was proper in Michigan and assumed jurisdiction over the children and the divorce proceeding. The court reserved for future decision the issue of jurisdiction over the parties' property.
Plaintiff also brought a jurisdictional challenge. The English court ruled on June 13, 1995, that jurisdiction was proper in England. Defendant then asked the Ingham Circuit Court to defer jurisdiction to the English court on the basis of forum non conveniens. After a hearing on August 7, 1995, the circuit court denied the motion and assumed jurisdiction over the parties' property.
Both suits proceeded. On October 27, 1995, a "decree absolute" of divorce was entered in the English court. This was followed by a seven-day trial in March 1996 in which plaintiff filed an answer claiming the "full range of financial ancillary relief available to a wife under the Matrimonial Causes Act [of] 1973."
Both sides presented expert witnesses who testified regarding the parties' assets and plaintiff's reasonable needs. On March 21, 1996, the English court issued a lengthy opinion in which it determined defendant's total net worth to be "about £400 million."
The court ruled that the reasonable needs or requirements of plaintiff, in light of her predivorce lifestyle and habits and the available assets, entitled her to £300,000 ($450,000) a year for life. However, the court held that, "In seeking to achieve justice [the court is] not limited to the reasonable annual expenditure of the wife... or to such other matters ... described as constituting her `reasonable requirements.'"
The court awarded the plaintiff a lump sum of £9 million ($13,500,000), the amount it felt necessary to achieve an equitable distribution. The plaintiff was also awarded the house in Okemos, Michigan, and its contents, that the parties agreed were worth approximately $1.5 million. She was awarded four paintings and her jewelry. The court also set child support in the amount of $95,400 a year for both children.
Defendant was awarded four automobiles and the balance of the marital estate. The English court expressly found that plaintiff was not entitled to a substantial share of defendant's family wealth. It was not a product of the marriage and had not been generated by the efforts of either party.
On March 29, 1996, defendant moved to stay or dismiss the Ingham Circuit Court proceedings, arguing that the English judgment was entitled to enforcement under the principle of comity and under the Uniform Foreign Money-Judgments Recognition Act, M.C.L. § 691.1151 et seq.; M.S.A. § 27.955(1) et seq. At the hearing on April 8, 1996, he urged, also, that the present action was barred by res judicata.
The circuit court judge denied the motion, finding that the English judgment was not entitled to recognition under the UFMJRA or the principle of comity. He reasoned that the English system of law was repugnant to the public policy of Michigan, and the English decision violated plaintiff's "right to have a fair and equitable distribution of property...."
On appeal, in a per curium opinion, the Court of Appeals reversed, concluding that the "entire judgment, including the property division as well as the child support and lump-sum awards," should be enforced under the UFMJRA. 224 Mich.App. 146, 150, 568 N.W.2d 353 (1997).
With regard to whether the English law was repugnant to our public policy, the Court of Appeals explained:
[I]t cannot reasonably be argued that plaintiff was denied due process because she was represented by counsel, given an opportunity to be heard, and presented evidence on her own behalf. Although the circuit court opined that the English judge was not impartial, a review of the lengthy opinion of the English judge fails to support a finding of bias. Further, had the issue of fault been raised, it would not have benefited plaintiff, who admitted that her continuing infidelity was the cause of the marital breakdown. Consequently, no evidence that plaintiff was prejudiced by an unfair tribunal or proceeding is present. [224 Mich.App. at 151-152, 568 N.W.2d 353.]
[T]he factors that judges take into consideration in property division in English divorce cases under § 25 of the Matrimonial Causes Act of 1973 are virtually identical to the factors identified by our Supreme Court in Sparks v. Sparks, 440 Mich. 141, 159-160, 485 N.W.2d 893 (1992).... While the Ingham circuit judge might have awarded plaintiff more of the marital estate than did the English judge, that fact alone does not render the English judgment repugnant to the public policy of the state where the children are adequately provided for and the plaintiff has the means to maintain a lifestyle similar to the one she enjoyed throughout the greater part of the marriage. [Id. at 152, 485 N.W.2d 893.]
The Court of Appeals also concluded that comity mandated that the English judgment be respected. Plaintiff had a fair hearing on the merits at which she was present, represented by counsel, and actively participated. Thus, she was accorded due process.
Finally, the Court of Appeals reasoned that res judicata barred the case from being relitigated because the English court had considered the property, alimony, and child support claims and issued a final order. The English court did not consider child custody or visitation. These issues were within the purview of the Ingham Circuit Court under the Uniform Child Custody Jurisdiction Act, M.C.L. § 600.653; M.S.A. § 27A.653.
When plaintiff appealed, we granted leave on October 12, 1998. 459 Mich. 878, 586 N.W.2d 744.
The Court of Appeals correctly held that comity dictated that the judgment should be enforced because the plaintiff was accorded due process. Since the English judgment adjudicated the property issue, the plaintiff is barred from relitigating that issue under res judicata.
Comity is defined as the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. [Bang v. Park, 116 Mich.App. 34, 39, 321 N.W.2d 831 (1982), citing 16 Am.Jur.2d, Conflict of Laws, § 10, pp. 27-29 (currently § 15, pp. 25-26).]
Comity mandates that this foreign judgment be given force and effect. The seminal United States Supreme Court case of Hilton v. Guyot,2 set forth the factors that the federal courts use in recognizing and giving full effect to the judgment of foreign countries under comity:
Where there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact.
Michigan courts have used the Hilton criteria. In Growe v. Growe,3 the appellee began a domestic relations action in Ontario. A judgment for alimony and custody of the parties' minor children was rendered by the Supreme Court of Ontario. Later, the defendant left Canada, obtained a Nevada divorce, and began living in Wayne County, Michigan. The appellee commenced suit in Wayne Circuit Court seeking support arrearages. The trial court dismissed the appellee's action, and the Court of Appeals, in reviewing the appellee's request for relief, noted:
Faced as we are here with a judgment from a court of competent jurisdiction which lies but the breadth of a river from the instant court, closer, indeed, than most of the remaining 49 States, and a court which draws its concepts of law from the same roots as ours, comity supplies a rational and well-founded reason for affording relief to this plaintiff. Any appellate court faced with the compelling elements this Court finds before it would be derelict if it did not examine minutely this burgeoning concept of jurisprudence. [2 Mich.App. at 32, 138 N.W.2d 537.]
In upholding the Ontario judgment under the principle of comity, the Court of Appeals held:
A review of the judgment will indicate whether or not the basic rudiments of due process were followed, whether the parties were present in court, whether a hearing on the merits was had. [2 Mich.App. at 33, 138 N.W.2d 537.]
Here, both parties participated and were represented by counsel in the English court proceedings. Plaintiff initially challenged jurisdiction in the English court. She asserted that defendant had not been "habitually" a resident of England for twelve months. Justice Johnson of the Family Division of the High Court of Justice ruled in defendant's favor, concluding that England was his main home and that he intended to stay there.
Plaintiff argues that the English judgment should not be enforced because defendant was not domiciled in England. We find this argument unpersuasive. The present case is distinguishable from the situation presented in Gray v. Gray, 320 Mich. 49, 58, 30 N.W.2d 426 (1948). In Gray, the wife was not personally served with process and the husband lived in Nevada only for the time necessary to obtain a divorce, then returned to Michigan. Under those facts, we determined that he had not acquired a bona fide domicile in Nevada and refused to recognize the divorce. See also Henry v. Henry, 362 Mich. 85, 92-93, 106 N.W.2d 570 (1960). However, in the present case, the record does not reflect that defendant moved to England for the purpose of obtaining a divorce. Rather, he moved to England to receive a disbursement from his family's trust.
The English court heard evidence pertaining to the value of the Dart Container Corporation, as well as defendant's salary and other real and personal property. It heard evidence regarding plaintiff's nonmonetary contributions to the marriage as well. It considered the home in Michigan, paintings, jewelry, and cars.
The parties agree that the factors that the English courts examine when dividing property are substantially the same as those used in Michigan. In Sparks v. Sparks, supra, this Court set forth the appropriate factors to consider in the division of marital property:
(1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity. [Id. at 159-160, 485 N.W.2d 893.]
Section 25 of the Matrimonial Causes Act4 requires that an English court consider nearly identical factors in dividing marital property.
Plaintiff argues that English courts apply a different rationale in cases involving large assets. In her brief, she asserts that the English court principally examined her financial needs to determine the appropriate award, not the marital assets.
In Preston v. Preston,5 the English court announced a formula to be applied in cases in which the available resources are large. Preston established that there is a maximum sum to be awarded. This so-called "Preston ceiling" limits the award to an amount that satisfies the court's estimation of a wife's needs for support. Lord Justice Ormrod wrote in Preston:
I think that on the true construction of § 25 there does come a point, in cases where the available resources are very large, ... when the amount required to fulfill its terms "levels off," and redistribution of capital as such, in some unspecified ratio begins, which is outside the section. [Id. at 339.]
Had the English court actually used this formulation to divide the parties' marital assets, we might agree with plaintiff that she was denied due process. However, the English court did not use the Preston ceiling. Instead, it determined that the defendant's holdings and trust income were not marital property. Justice Johnson explained:
[I]f you had a case where the husband and wife together built up a vast property empire, I see no reason why the wife's contribution should not entitle her to 50%. There is said to be a distinction between the wife whose contribution was child care and the wife who actually worked in the business, doing the books or whatever, it was. If Mr. and Mrs. Dart had started with nothing and in a back street somewhere in Detroit they had started making plastic objects and over the period of 20 or 30 years they had [ended] up with an empire worth [£]1,000 million, I would see every reason for Mrs. Dart having half of it. Personally, I do not have any difficulty with that. Whether the English law permits it or not is another matter, but that is not this case.
Normally, property received by a married party as an inheritance, but kept separate from marital property, is deemed to be separate property not subject to distribution. Lee v. Lee, 191 Mich.App. 73, 477 N.W.2d 429 (1991). The trust income from the Dart Container Corporation was never marital property. Although the defendant worked for Dart Container Corporation during the marriage, his compensation was the salary and bonuses that he earned. His cumulative salary and bonuses over the course of the marriage were far less than the $14.5 million property award that plaintiff received.
The Dart fortune and defendant's interest in it exist independently of defendant's workplace activities or the marriage partnership.6
Thus, the English court's treatment of defendant's interests in the Dart family trusts and assets as separate property, rather than marital assets, did not violate plaintiff's right to due process.
Moreover, plaintiff's assertion that the English court failed to consider marital property is flawed. The English judgment awarded her the $1.5 million house in Okemos, some paintings, and a car. It also awarded child support in the amount of more than $90,000 a year. Certainly, the English court could not have divided these marital assets had there been no discovery. We find that the plaintiff was accorded due process in the English proceeding.
Consequently, res judicata bars the plaintiff from relitigating the property distribution issue. The English court decided this issue on the merits. Res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical. Eaton Co. Bd. of Co. Rd. Comm'rs v. Schultz, 205 Mich.App. 371, 375, 521 N.W.2d 847 (1994). A second action is barred when (1) the first action was decided on the merits, (2) the matter contested in the second action was or could have been resolved in the first, and (3) both actions involve the same parties or their privies. Id. at 375-376, 521 N.W.2d 847.
Michigan courts have broadly applied the doctrine of res judicata. They have barred, not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. Gose v. Monroe Auto Equipment Co., 409 Mich. 147, 160-163, 294 N.W.2d 165 (1980); Sprague v. Buhagiar, 213 Mich.App. 310, 313, 539 N.W.2d 587 (1995).
Here, the Michigan divorce action involves the same parties with the same assets and the same children as the English action. We have already determined under our comity analysis that the English judgment is valid. The fact that it does not address custody or visitation is not fatal to its preclusive effect with respect to property distribution. The Ingham Circuit Court has jurisdiction over the questions of custody and visitation, pursuant to the Uniform Child Custody Jurisdiction Act, supra. See Braden v. Braden, 217 Mich.App. 331, 338-339, 551 N.W.2d 467 (1996). Accordingly, res judicata bars relitigation of the present action.
We affirm the Court of Appeals decision to give deference to the English divorce judgment under the principle of comity. It was evident from the judgment rendered in England that plaintiff had a fair hearing on the merits, that she was present, represented by counsel, and actively participated. Thus, the present action is barred by res judicata.
WEAVER, C.J., and TAYLOR, CORRIGAN, and YOUNG, JJ., concur with MARILYN J. KELLY, J.
I must part company with the majority on the deference shown to the English Court's judgment. While I agree with Justice Kelly that the English Court did not apply the Preston1 "ceiling" rule in this case, but rather steered away from such a ruling to find the bulk of defendant's assets to be nonmarital property, I am unpersuaded that such a finding removes the English decision from the looming shadow of Preston.
As even the majority tacitly admits, the application of the Preston rule in a case such as this (or in any case for that matter) would likely raise serious due process concerns. The mere existence of such a rule, and the apparent statutory basis for the rule cited by Lord Justice Ormrod in adopting it,8 suggests that, at least in cases in which substantial assets are involved, the goals of the English judicial system in marital dissolution cases differ substantially from the framework of our state, as reviewed by us in Sparks.9 Where plaintiff was in the exact position necessary for her to suffer the ill effects not only of the Preston rule, but also the underlying statutory and judicial rationales for it, I cannot say, particularly in view of the asset division undertaken by the English Court, that she escaped unscathed by the effects of the adverse predispositions demonstrated.
In reaching this conclusion, it is necessary to consider, given the majority's reliance on the determination of the trust assets as nonmarital in nature, what sort of effect would have occurred had Justice Johnson of the English Court found the entire amount of disputed property (including the trust assets) to consist of marital assets. While the justice postulated he personally would not have had difficulty awarding plaintiff half the assets in such a case, he also noted that whether that would be permitted under law was another matter. Indeed, the Preston rule would appear to dictate that, regardless of his decision, plaintiff, from the beginning of the English case, was predestined to receive only a fraction of the disputed assets, regardless of the determinations of the Court on whatever substantive issues there might have been (including the marital property issue). It is difficult to give due process credence to a system in which the result would remain adverse to the plaintiff whether or not she prevailed on the point the majority determines the case should be decided upon.
Accordingly, while not, in large part, disputing the authorities cited by the majority as a general matter, I am nonetheless convinced that the operation of the English system of marital asset division in cases involving substantial assets reflects considerations very different from our own, and that such considerations cast a shadow on the decision sufficient to preclude Michigan courts, with our well-established criteria for property distribution in divorce cases, from recognizing a decision that is not only from another land, but truly foreign to the concepts underlying Michigan law. Accordingly, I respectfully dissent from the Court's decision.
BRICKLEY, J., concurs with MICHAEL F. CAVANAGH, J.
In Hanaway v. Hanaway, 208 Mich.App. 278, 527 N.W.2d 792 (1995), the Court of Appeals held that stock the defendant inherited in a family-owned company could be distributed as part of the property award. The plaintiff's handling of child-rearing and domestic duties had freed the defendant to concentrate on building the company and increasing the value of its stock. Similarly, in Reeves v. Reeves, 226 Mich.App. 490, 575 N.W.2d 1 (1997), the Court of Appeals concluded that the marital estate did include the appreciation in value of the husband's separate assets that he actively managed during the marriage, but not the appreciation of his passive investments.
We agree with the rationales expressed in Hanaway and Reeves. However, we find the circumstances in those cases distinguishable from the present situation. We recognize the possibility that plaintiff might have shown a nexus between defendant's work at the company and the underlying trust assets. The object would have been to include within the marital estate the appreciation in value of the trust assets. However, we conclude that the possibility of prevailing was remote and, therefore, not a sufficient reason for us to decline to recognize the English judgment. Unlike the husband in Reeves, supra, defendant did not actively manage the trust in question. It was a legal entity separately created by defendant's father.