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24 Cards in this Set

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SISTER STATE JUDGMENTS: should rendering state's judgment be recognized and enforced by NY?
Is that judgment entitled to full faith and credit?

Do any valid defenses apply? (think GOOD defenses, not BAD ones)
SISTER STATE JUDGMENTS: Is that judgment entitled to full faith and credit?
(1)valid jurisdiction over both parties and subject matter
(2)The judgment must have been a final judgment (Note: if modifiable not a final judgment and gets no full faith and credit, BUT will usually be enforced under comity; e.g. Future alimony & Future child support - amounts that have already accrued and are in arrears, which do merit full faith and credit
(3) Judgment must have been rendered on the merits. This means that it can’t be dismissed b/c of S/L running out or other procedural reason. Two situations that are not usually considered on the merits but are for our purposes here:
-Default judgments
-Consent judgments
SISTER STATE JUDGMENTS: Good defenses to enforceability
-Judgment is penal. This is limited defense. Definition has been curtailed to mean it was redressing an offense against the public, so must be criminal sanction or civil fine. See if the entity awarded the judgment is the govt; NOTE: punitive damages NOT penal judgment.
-Extrinsic fraud (not intrinsic fraud, or the kind of fraud that could have been dealt w/ in the prior litigation, and it is NOT a good defense, Perjury by a witness
-Extrinsic fraud is fraud that could not have been coped with. Only example: bribing of the judge.
-Judgment is a tax judgment. Today these are not considered penal and entitled to full faith and credit.
-Judgment is based on cause of action that violates forum’s public policy. Idea is that it shouldn’t be recognized b/c it wouldn’t have gone forward in the forum’s state. Not acceptable reason anymore.
-Mistakes by the judge in the earlier trial. Remedy for such mistakes is to appeal the incorrect judgment; it is too late to raise the issue at the recognition of judgments stage.
-Inconsistent judgments. Later judgment can be enforced even though it is inconsistent w/ valid earlier one. Rule of thumb: enforce the last judgment in time. E.g. Jane sues in state A: State A renders judgment in D’s favor; Jane then goes to State B w/ same cause of action against same party and State B renders judgment in Jane’s favor, even though shouldn’t have b/c State A’s decision was entitled to full faith and credit. State B was wrong to proceed on judgment, but even so, if state B judgment is sought to be enforced in State C, State C must give it full faith and credit. The D should have pursued an appeal to get it overturned.
These can be recognized and enforced if a two part comity test is satisfied:

(1) Jurisdiction must have been proper;
(2) Fair procedures must have been used in that proceeding.
-WE USE RECOGNIZING STATE'S LAW to determine whether foreign country judgment meets this test. This means that we’re using state’s ideas of due process: were there enough contacts w/ the litigation or the parties to make the jurisdiction fair? Fairness is the key.
Three types of judgments, each w/ own jurisdictional requirements:

1) Termination of marital status, that is, the divorce decree itself.
2) Property awards, such as alimony and child support.
3) Child custody awards.
Rule: valid divorce requires proper subject-matter jurisdiction and this requires that one of the two spouses be domiciled in the state rendering the divorce.

Three types of divorce:
a) Ex-parte divorce. Only one of the spouses is validly domiciled where the divorce is granted.
b) Bi-lateral divorce: one of the spouses is validly domiciled where the divorce is granted, and both spouses are subject to personal jurisdiction there.
c) Consent divorce: both want out of the marriage, and go together somewhere to get it (i.e. the “quickie” divorce).

So for any kind of divorce to be valid there must be valid domicile of at least one of the parties to give the necessary subject-matter jurisdiction.
RECOGNITION OF DIVORCE: Procedural matters
a)Burden of Proof: Attacker of the jurisdiction bears the burden of proof. But attacker can introduce any relevant evidence whatever...even if the evidence came into the existence after the divorce was granted.
b) Any interested person who is not estopped can attack a divorce decree for lack of subject-matter jurisdiction. Doesn’t count for best friend. Watch out for four situations on estoppel, in which P is estopped:
-Where attacker was subject to personal jurisdiction in the earlier proceeding; thus the spouse in a bi-lateral divorce cannot later attack that divorce;
-Where attacker may not have been subject to personal jurisdiction in earlier proceeding, but the attacker played a meaningful role in the granting of the divorce; (e.g. buying wife plane ticket, taking her to airport, getting her on plane.)
-Persons who are in privity with a party to the divorce; this includes children. So we’ve just gotten rid of a lot of interested persons.
-Spouse who has remarried in reliance on the earlier divorce.
-Divisible Divorce Doctrine. If decree has some parts that are good and some that are bad (as per the above rules), you keep the good and ignore the rest; this is called the divisible divorce doctrine. E.g. woman living in NY goes to Vegas to get ex-parte divorce, and the court there grants her divorce decree, alimony, child support, and child custody. We enforce the divorce decree, and that’s it.
(1) Property Awards
Rule: Court granting alimony or child support must have personal jurisdiction over the spouse whose property rights are in issue.
(2) Child Custody Decree
Rule: Valid jurisdiction for determining child custody lies only in the child’s home state. All you do is look to see which is the child’s home state.

RECAP: For divorce: subject-matter jurisdiction—valid domicile of at least one party.
DOMICILE: Four ways domicile might appear on the exam
(1) Domicile of the decedent is used to choose the law to be applied to determine intestate succession of personal property. (Location of the land determines devolution of real property.)
(2) Domicile at death determines which state gets estate taxes.
(3) Domicile of individual gives subject-matter jurisdiction for a divorce.
(4) Domicile is v. important when applying NY choice of law rules.
DOMICILE: Determining Domicile BY CHOICE
1) Physical presence in that state; Physical presence can be for short time and still satisfy the requirement.
2)The intent to remain for the foreseeable future, that is, indefinitely.

-Conflict between acts and words on intent: Actions speak louder than words. What you do counts for more than what you say when intent is concerned.
-Person can have only 1 domicile.
-Once obtained, a domicile of choice is kept until another one is acquired. If George intends to leave NY and move to Florida but gets killed in car accident in VA as he’s driving there: as to Florida, he had necessary intent, but no physical presence; as to VA, physical presence but no intent. So it’s in NY. Since he hadn’t acquired domicile in another state, he keeps his NY domicile.
Motive for going to another state to acquire domicile is irrelevant.
DOMICILE: Determining Domicile BY LAW
If person has no legal capacity to acquire a domicile of choice, that person will be assigned one by operation of law.
Two situations:
(1) Domicile of a child. If child doesn’t have legal capacity to get domicile of choice, domicile will be that of child’s parents, and if parents are divorced, domicile is that of parent who has physical custody of the child.
(2) Domicile of married woman living apart from her husband in different state. Today: married woman can obtain a domicile of choice, just like anyone else. But old rule was that she had domicile of her husband.
CHOICE OF LAW: Constitutional limitations

Test (for both): state chosen must have SIGNIFICANT contact with the parties or the subject matter of the litigation which give it a LEGITIMATE INTEREST in seeing its law applied.

No weighing of interests of the states is needed; as long as a state meets the test, then its law can be applied.

Two situations that fail: Two situations that do not meet this test:
1) If after the event in question, someone moves to a new state, and that move creates the only contact with that state
2) If the only contact w/ the parties or the litigation is that the suit is brought in a state, then it would be unconstitutional to apply that state’s law.
Vested Rights Approach to Choice of Law

Governmental Interest Analysis Approach to Choice of Law
APPROACHES TO CHOICE OF LAW PROBLEMS: Vested Rights Approach to Choice of Law
The traditional system; also called the territorial approach: the law to be applied is the law where the right of the plaintiff vested.

There was a rule for each area of law:
o Torts: the instant a cause of action arises, P’s rights become vested, so the vested rights rule would say to apply the law of the place where the injury occurred, or the place of the wrong.
o Contract: Rights under a K vest at the moment the K is made, so you apply the law of the place of making the K.

NOT BAD: had a rule for every area of law; The rules were all territorial rules, pointing to a single place; Most vested rights rules were fairly clear and easy to apply, BUT they may wind up pointing to a state that has absolutely no policy interest in the outcome of the litigation.

Discontent w/ rigidity of this system lead to evolution of a new approach....
APPROACH TO CHOICE OF LAW PROBLEMS: Governmental Interest Analysis Approach to Choice of Law
Babcock test; focus on POLICY INTERESTS

1) List factual contacts with each state
2) Note the different state laws in issue.
3) Find out the policies underlying each state’s law by consulting legislative history and court decisions.
Exam shortcut: just look at which state’s law would favor the P and which would favor the D.
4) Take the facts and relate them to the policies to see if the state has an interest in seeing its law applied.
Exam shortcut: does the party being favored by a state’s law reside in that state? if so, that state has an interest.
5) Apply the law of the state with the greatest interest.
To do this, we must see which of four categories the conflict is in:
a) Is it a false conflict, that is, where only one state has an interest in having its law applied? If so, you apply the law of the only jurisdiction w/ an interest in the outcome of the litigation.
b) Is it a true conflict, that is, where 2 or more of the states involved have an interest in the litigation, and one of them is the forum state. If you have a true conflict, you will presume that you will apply the law of the forum state, unless the interest of the other state is much greater.
c) Is it a disinterested forum case, where 2 or more states have an interest in having their law applied, and the forum is not one of them. Here, NY court can do one of two things:
(1) Apply the law that is closest to NY law; OR
(2) Apply the best law
d) Is it an unprovided-for case, where no state has an interest in applying its own law. In this situation, courts most often will just apply NY law.
If question re: Rules Regulating Conduct: ("rules of the road") apply the law of the place of the injury.

If not, use the 5-step Babcock test PLUS the additional 3 rules of Neumeier:
1) When P and D are domiciled in the same state, that state’s law will be applied. This is called the “same domicile” rule.
2) When P and D are domiciled in different states, then if the law of the place where the accident occurred helps its citizen, that state’s law will be applied.
3) When P and D are domiciled in diff. jurisdictions and the law of the place where the accident occurred does not help its citizen, then you still apply the law of the place of the injury unless the other jurisdiction has a greater interest in the outcome.

Neumeier in a nutshell: apply the law of the place of the injury unless both parties live someplace else.

This applies to loss Distribution Rules, those that determine which party will bear the loss.
CHOICE OF LAW: Contracts
Parties can always choose the law in the K for matters of contract construction. Note that any law can be chosen for construction matters.

Parties can also choose the law to govern matters of K validity provided 3 things exist:
1) Choice can’t be contrary to a fundamental policy of a state w/ greater interest than the chosen state.
2) There must be a substantial relationship to the parties or the transaction.
3) The choice must be free of duress; that is, not a K of adhesion.
CHOICE OF LAW: NY Special Statute on Large Contracts
-If K is for not less than $250K, the parties can choose NY law even if the K has no connection with NY at all.
-If K is for not less than $1 million and the parties choose NY law in the K, then the parties may also put in a clause specifying that NY may be the forum, and the courts are prohibited from dismissing under forum non conveniens.
-Choice of law if parties don’t choose law in the K: NY has abandoned the old vested rights rule in K (place of making) in favor of interest analysis in the Babcock 5-step test. But when interest is applied to K we call the state chosen the state w/ the most significant relationship to the K.
-Special rule for insurance K: all issues regarding the rights and duties under an insurance policy are determined by the state where the policy is written.
CHOICE OF LAW: Property Matters
(3) Real Property
● Just one rule: the law of the situs of the property governs, that is, the law of the place where the property is located.
(4) Personal Property
● For every situation but one, use the same situs rule as for real property.
o BUT if the issue is the passing of personal property by intestate succession, the state chosen is the state of the deceased’s domicile at death.
(5) Inheritance Law
● A non-NY domiciliary can choose NY law in a will to apply to the disposition of NY assets. This applies in all situations, even when it would oust a wife from an elective share.
CHOICE OF LAW: Family Matters
General rule: if a marriage is valid where performed, it is valid everywhere. If invalid where performed, invalid everywhere.

Exception: if a marriage would violate the strong public policy of a state then it may not be recognized even though it was valid where performed. So we might not know on the gay marriage issue.

Marriages void where performed everywhere, BUT if a marriage is void b/c it failed to comply with some technical requirement of the state where performed can still be recognized in NY IF it would have complied w/ the NY rule

Divorces governed by the law of P’s domicile.
(1) That the law chosen is procedural, not substantive.

What is procedural:
-Burden of Proof.
-Statute of limitations.
-Exception: borrowing statute, which will borrow, and apply, the shorter statute of the state where a cause of action arose. (Purpose is to prevent forum shopping.) BUT NY will not apply the borrowing statute if the P is from NY.
-Ability to bring counter-claims.

What is substantive:
-Contributory or comparative negligence
-Statute of Frauds
-Parol evidence rule
-Contribution among tortfeasors.
-Direct action statutes. That is one that lets P sue insurance company of D directly. NY rule is opposite of majority in considering it substantive rather than procedural.

(2) That the law is against the public policy of the forum state: VERY restricted. Law must be really offenses. Virtually useless as defense.

(3) That the law is a penal law: Applies only to offenses against the public: a criminal judgment or civil fine; ALSO VERY limited defense.
CHOICE OF LAW: In federal courts
A federal court sitting in a diversity case must use the choice of law rules of the state in which it sits.