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# FILE IN CLERKS OFFICE MI'I8IECOURT, STATEOFWMIII«rr'CCII

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### IN THE SUPREME COURT OFTHE STATE OFWASHINGTON

IN THE MATTER OF THE ESTATE OF ) ETSUKO FUTAGI TOLAND, ) No. 88045-0 ) Deceased. ) ) BRYCEH. DILLE, as Personal ) Representative ofthe Estate of ) Etsuko Futagi Toland, ) ) Petitioner, ) EnBanc ) 

### v. ) ) PETERPAUL TOLAND, JR., ) ) 

## JUL 10 2014 Respondent. ) Filed
MADSEN, C.J.-The estate ofEtsukoFutagi Toland (Estate) asks that we reverse the Court ofAppeals decision upholding summaryjudgmentthat deniedregistration ofa Japanese divorce decree awarding Etsuko Toland a monetary award against her former husband, Peter Paul Toland. 1 Theprimary question is whether the trial court abused its discretion in denying recognition ofthe divorce decree under comity principles because

1 We refer to Etsuko Toland by her first name and, following the Court ofAppeals, refer to Peter Paul Toland by his middle name.No. 88045-0
Paul was not given notice ofa Japanese guardianship proceeding involving the couple's daughter. We reverse the Court ofAppeals. The 2008 guardianship has no effect onPaul's legal obligations under the 2006 divorce decree. The divorce decree is valid, and whether it shouldbe recognized as a matter ofcomity does not depend on whetherPaul had notice ofthe guardianship proceeding. We holdthatthe trial court abused its discretion and remand for registration ofthe divorce decree. FACTS In 1995, Paul and Etsuko married in Japan. Paul is a career naval officer. In 1996, the United States Navyreassigned him to duty in the states, where he and Etsuko lived for a time in Kent, Washington. After he was reassignedbackto Japan, Paul and Etsuko lived on a naval base not far from Tokyo. On October 17, 2002, the couple's daughter, Erika, was born. Erikahas never lived outside ofJapan, and she speaks Japanese. In 2003, Etsuko became a naturalized citizen ofthe United States. In July 2003, the couple separated andEtsuko and Erika lived for a shorttime near the naval base and then moved into the home ofEtsuko's mother, Akiko Futagi. Etsuko claimed that Paul was mentally abusive and had an extramarital affair. Paul claimed that Etsuko suffered from severe postpartum depression butrefused medical treatment. Theparties filed competing divorce actions. In September 2003, Paul filed for dissolution ofmarriage inPierce County Superior Courtbut failed to serve Etsuko. In
2

### No. 88045-0
November 2003, she petitioned for mediation in Japanese family court. The mediation, which is a prerequisite to seeking a Japanese divorce, failed, and Etsuko filed for divorce. Duringthis period, Paul had visitation rights that he exercised twice. In the meantime, the Pierce County court stayed the Washington stateproceedings in light ofthe proceedings underway in Japan. In 2004 Paul was reassigned to Washington, DC, and in 2005, he filed for divorce in Virginia, where he resided. In the Japanese divorce proceedings, Paul was represented by several Japanese attorneys, apparently from the same firm. On September 29, 2005, the Japanese court orally announced the divorce decree. In March 2006, the court finalized the decree, thoughPaul had discharged his attorneys by this time. The .T

### apanese court found that Paul had been psychologically abusive, had an extramarital affair with another Japanese woman, and had not exercised visitation under the mediation agreement. The divorce decree divided the parties' property, awarded custody ofErikato Etsuko, ordered Paul to pay child support, and awarded damages to Etsuko for mental anguish. Meanwhile, the Virginia court dismissed the divorce action that had been filed there after a Virginiajudge conferred withthe Pierce County Superior Courtjudge and the Pierce County court dismissed the petition here in Washington after the Japanese court entered the final divorce decree. The Court ofAppeals affirmed dismissal ofthe Pierce County dissolution action. 

### Tolandv. Toland, noted at 140 Wn. App. 1015, 2007

3

### No. 88045-0
WL 2379722. 2 

### Among other things, the Court ofAppeals awarded attorney fees to Etsuko on the ground that the appeal was frivolous. On October 31, 2007, Etsuko committed suicide. There is some question about how Paul learned ofthis, butregardless, there is no question that he and Etsuko's sister, Yoko Futagi, communicated about Erika coming to live in the United States withPaul. Erika continued, however, to live in Japan with Etsuko's mother, Akiko Futagi. Akiko had frequently cared for Erika while Etsuko worked. In January 2008, Akiko successfully filed for guardianship ofErika and was appointed guardian. The Estate maintains the guardianship was necessary so that Akiko could enroll Erika in school and obtain medical care, among other things. The Estate also maintains that after Etsuko's death, Paul refused to pay child support or to pay the attorney fees awarded by the Court ofAppeals following dismissal ofhis petition for dissolution ofmarriage in Pierce County. In May 2009, Yoko Futagi filed aprobate action in Washington, among other things, to collectthe child support and the attorney fees award for Erika's benefit, as Erika is Etsuko's sole heir. However, Ms. Futagi could notpost bond and the trial court appointed attorney Bryce Dille to serve as personal representative ofthe Estate. A guardian ad litem was appointed to represent Erika's interests, but he has nottaken an active role in the present action.

2 In its decision, the Court ofAppeals said that the record showed Paul had engaged in various legal maneuvers to obtainjurisdiction over his wife and child inthe United States, including the unsuccessful divorce action brought in Virginia. Toland, 

### 2007 WL 2379722, at 

### *8. The Court ofAppeals noted that the trial court found thatPaul appeared to be forum shopping. Id. 

### 4No. 88045-0
The Estate then filed an action seeking to register the Japanese divorce decree for enforcement ofits moneyjudgments, relying onthe Uniform Enforcement ofForeign Judgments Act, chapter 6.36 RCW, and the former UniformForeign-Country Money Judgments Recognition Act, former chapter 6.40 RCW (2008). Paul denied the judgments were enforceable and moved to dismiss the case or for an order denying recognition ofthe Japanese divorce decree. The trial court denied the motionto dismiss, saying that it could not "find anything facially wrong with the Japanese divorce decree as it addressed all ofthe issues, including support, property division, and other matters, the judgments ofwhich are ofvalid amounts under Japanese law. The property and support aspects ofthe Japanese Divorce Decree neednotbere-litigated." Clerk's Papers at 648. However, neither chapter 6.36 RCW nor chapter 6.40 RCW applied to allow for recognition ofthe decree. Chapter 6.40 RCWwas repealed byLaws of2009, chapter 363, section 14, effective July 26, 2009. Atthe same time, the currentUniform ForeignCountry Money Judgments Recognition Act, chapter 6.40A RCW, was enacted. LAws OF 2009, ch. 363, §§ 1-13. Like its predecessor, this new act expressly states that it does not apply to "[a]judgmentfor divorce, support, or maintenance, or otherjudgment rendered in connection with domestic relations." RCW 6.40A.020(2)(c). The trial court explained, however, that the decree could be recognized ifthe Estate establishedthatthis would be appropriate under the doctrine ofcomity. Pursuant to the savings clause in RCW 6.40A.090 and notwithstanding the scope ofchapter 6.40A RCW, the act "does notpreventthe recognitionunderprinciples ofcomity or otherwise


### 5

### No. 88045-0
ofa foreign-countryjudgment." RCW 6.40A.090. The trial court also said, though, that
as part ofthis showing the Estate wouldhave to establish that Paul had received actual notice ofthe guardianship action before Etsuko's mother was appointed guardian or show in some other way that due process and fairness concerns were satisfied. The Estate retained a Japanese lawyer, Mr. Yorimichi Ishikawa, as an expert in Japanese family law, whose undisputed testimony establishedthatPaul received no notice ofthe guardianship proceedings because such notice is not required under Japanese law. He also testified that the guardianship does not preclude Paul from seeking custody ofErika in Japan. Paul moved for summaryjudgment dismissing the Estate's action seeking recognition ofthe Japanese divorce decree. He argued dismissal was required as a matter oflaw because he did not receive notice ofthe guardianship proceedings. In response, the Estate argued that recognition ofthe divorce decree under comityprinciples should not be precluded because ofa guardianship that occurred almost two years after the divorce decree was final. In addition, the Estate pointed out that Paul's own expert in a custody action he brought in Maryland agreed thatthe guardianship proceeding did notprejudice Paul's rightto seek custody in Japan. The trial court granted Paul's summaryjudgmentmotion, explaining in an oral ruling that comity was denied principally because ofthe lack ofnotice in the guardianship proceedings. The Estate appealed. The Court ofAppeals affirmed. 

### Estate of Tolandv. Toland, 170 Wn. App. 828, 286 P.3d 60 (2012). The court concluded that the divorce decree by

6

### No. 88045-0
itselfsatisfied comity principles. However, like the trial court the Court ofAppeals determined that comity should notbe applied because Akiko became Erika's guardian without notice to Paul ofthe guardianship proceedings. The Court ofAppeals said that considering the divorce decree alone would require ignoring the practical and harmful consequences ofthe guardianship proceeding. Id. at 839. The court concluded that under due process principles, Paul would have been entitled to notice ofthe guardianship proceedings, see ClevelandBd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. 

### Ed. 2d494 (1985); that as the sole survivingparent, Paul would be entitled under Washington state law to control ofErika absent somejustification for withholding custody, RCW 26.16.125; and thathis substantive due process interests in his child would be abridged ifthe decree is recognized, see Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. 

### Ed. 2d 49 (2000). Estate ofToland, 170 Wn. App. at 839-40. We note that the present action was consolidated in the Court ofAppeals with Paul's appeal ofsummaryjudgment dismissing his petition, under the Trust and Estate Dispute Resolution Act (TEDRA), chapter 11.96A RCW, to intervene in the probate action brought by the Estate. He argued that he was entitled to intervene as an interested party because he is the only parent ofthe heir ofthe Estate, Erika. Among other things, he asked to be appointed custodian ofthe inheritance. The trial court denied intervention
on the ground that Paul had a conflict ofinterest since he owed the Estate money. The Court ofAppeals reversed, holding thatbecause TEDRA is intended to apply broadly and

7

### No. 88045-0
Paul fs the father ofthe sole minor heir ofthe estate, he is an interestedparty under the act. Our review in the present case does not concern the motion to intervene or TEDRA. Finally, while matters wereproceeding in Washington, as indicated, Paul brought
a custody action in Maryland against Akiko Futagi in October 2009. The custody action
was dismissed after the Maryland trial court foundjurisdiction was notproperunderthe Uniform Child Custody Jurisdiction and Enforcement Act (ch. 26.27 RCW), and held inapplicable an exception thatpermits exercise of jurisdiction over a complaint when the child custody laws ofa foreign country violate fundamental principles ofhumanrights. Maryland's highest court affirmed the trial court decision, holding that Akiko's appointment as guardian did not implicate fundamental principles ofhuman rights because it did not sever Paul's right to custody. 

### Toland v. Futagi, 425 Md. 365, 40 A.3d 1051 (2012). The courtpointed outthat a guardian's role is separate and distinct from that ofa child's custodian. 

### !d. at 390. The Japanese decree ofguardianship was not equivalentto custody, as bothparties' expert witnesses attested (Akiko Futagi submitted Mr. Ishikawa's same testimony thatwas presented in the present action), and Paul remained able to seek Erika's custody in Japan. 

### Id. Accordingly, the guardianship did not implicate fundamental principles ofhuman rights. 

### Id. The Maryland court determined, in response to Paul's arguments grounded in the whole ofJapanese custody law, including the methods and criteria involved in awarding custody, that any question about Erika's custody was not ripe and wouldrequire the court to render an advisory opinion based on a future matter, which it wouldnot do. 

### Id.
8

### No. 88045-0
ANALYSIS As noted, the Uniform Foreign-Country Money Judgments Recognition Act does not apply to govern whetherthe Japanese divorce decree will be givenrecognition in this state. However, its savings clause permits recognition ofa foreignjudgmentunder principles ofcomity. RCW 6.40A.090. "Comity is a recognition which one nation extends within its own territory to the legislative, executive, orjudicial acts ofanother. It

### is not a rule oflaw, but one ofpractice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force ofan imperative or obligation. Rather, it is a nation's expression of understanding which demonstrates due regard bothto international duty and convenience and to the rights ofpersons protected by its own laws." Mayekawa Mfg. 

### Co. v. Sasaki, 

### 76 Wn. App. 791,799, 888 P.2d 183 (1995) (quoting Somportex Ltd. v. Phila. Chewing Gum Corp., 

### 453 F.2d 435,440 (3d Cir. 1971));New W Fisheries, Inc. v. Dep 't of Revenue, 

### 106 Wn. App. 370, 379, 22 P.3d 1274 (2001) (same). The comity doctrine allows a court, acting within its discretion, to give effectto the law and resulting orders ofanotherjurisdiction out ofdeference and respect, considering the interests ofeachjurisdiction. Haberman v. Wash. Pub. Power Supply Sys., 

### 109 Wn.2d 107, 160, 744 P.2d 1032, 750 P.2d 254 (1987); MacKenzie v. Bartha!, 

### 142 Wn. App. 235, 240, 173 P.3d 980 (2007). UndertheRestatement (Second) of Coriflict of Laws§ 

### 98 (1971 & 

### Supp. 1989) (amended 1988)), "[a] validjudgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as the immediate parties and the underlying claim are concerned." The foreign court must have hadjurisdiction and there must have
9

### No. 88045-0
been opportunity for a full and fair trial abroad before a court ofcompetent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance ofthe defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens ofits own country and those ofother countries, and there is nothing to show either prejudice in the court, or in the system oflaws under which it is sitting, or fraud in procuring thejudgment. 

### Hilton v. Guyot, 159 U.S. 113, 202, 16 S. Ct. 139, 40 L. Ed. 95 (1895); RESTATEMENT§ 

### 98 cmt. c (1971). Ajudgment is valid ifthe courthadjurisdiction, there was notice, and the court was competent. 

### Rains v. Dep't of Soc. & 

### Health Servs., 98 Wn. App. 127, 135, 989 P.2d 558 (1999); RESTATEMENT§ 

### 92 (1971). 3 

### Ifa foreignjudgment is so contrary to the laws and policies ofa state that enforcing it would seriously interfere with the state's policies or laws or is prejudicial to the state's interests, then comity does not apply. 

### Hilton, 159 U.S. at 165.4 

### However, the
mere fact that the law ofthe foreignjurisdiction and our own law are different does not establish a violation ofthis state'spublic policy. 

### Richardson v. Pac. Power & 

### Light Co., 11 Wn.2d 288, 301, 118 P.2d 985 (1941).

3 Under section 92: Ajudgment is valid if (a) the state in which it is rendered hasjurisdictionto actjudicially in the case; and (b) a reasonable method ofnotification is employed and a reasonable opportunity to be heard is afforded to persons affected; and (c) thejudgmentis rendered by a competent court; and (d) there is compliance with suchrequirements ofthe state ofrendition as are necessary for the valid exercise ofpower bythe court. 4 Hilton also sets forth a reciprocity requirement for comity to apply, butthis requirement is no longer followed in most states, including Washington. See TongaAirServs., Ltd. v. Fowler, 118 Wn.2d 718, 726, 826 P.2d 204 (1992). 

### 10

### No. 88045-0
When comity principles supportrecognition ofa foreignjudgment, thejudgment will generally be given the same effect as thejudgment ofa sister state. Rains, 98 Wn. App. at 135 (citing RESTATEMENT§ 

### 117 cmt. c (1971)). Both the trial court and the Court ofAppeals found that the Japanese divorce decree is a valid foreignjudgmentthat satisfies the conditions for comity to apply. This conclusion is correct. Paul has not shownthat the Japanese court issuingthe divorce decree was incompetent. Hehad the opportunity to contestthe decree and in fact did so with the assistance ofa team ofJapanese attorneys. The divorce decree is supportedby a lengthy written decision. The fact that damages were awarded for fault (psychological abuse) that would not be available in our state does notrender the decree unfair or so antithetical to our law and policy as to preclude the decree's recognition as a matter of comity. Importantly, Paul had a right to appeal the divorce decree but did not do so. Paul maintains, however, that comity should not apply to the decree. Hepoints outthat Restatement § 98 provides that a foreignjudgmentmay berecognized only insofar as the immediate parties to the foreign proceedings are concerned. RESTATEMENT § 

### 98 (1971). He contends this requirement is not satisfiedhere because the present action does not involve Etsuko and himself, but instead involves the Estate and himself. The Estate, Paul urges, is not an "immediateparty" to the decree. Comment g to Restatement§ 98, as revised in 1988, explains that a foreign judgmentthat satisfies requirements for application ofcomity will be recognized to the
same extent as a sister statejudgment so far as the immediate parties and the underlying
11

### No. 88045-0
claim are concerned. RESTATEMENT§ 

### 98 & 

### cmt. g (1971 & 

### Supp. 1989). Comment g notes thatbeyondthis scope, there maybe questions about the extent to whichpersons other than the parties are boundbythejudgmentand whether foreign rules ofprivity, collateral estoppel, splitting a claim, orresjudicatamight apply.5 

### Emphasizing that we do not strictlyfollow section 98 and its comments as ifthey set out binding state law, we note that withthe explanationin comment g, the "immediate parties" and "underlying claim" limitations on scope are not a barto recognition ofthe divorce decree here. There are no indications ofany foreign rules affecting the scope of the persons or claims affectedbythejudgments inthe divorce decree. ButPaulurges, and the Court ofAppeals agreed, thatthere is a concern about recognizing the decree here ifAkiko couldnot enforce the decree inJapan, the country rendering thejudgments. 

### Estate of Toland, 170 Wn. App. at 842.

5 Comment g, as revised in 1988, states: Extent of recognition: A foreign nationjudgment whichmeets the conditions specified in Comment d will be given the same degree ofrecognition as a sister Statejudgment, subject to the qualification discussed in Comment/, so far as the immediateparties and the underlying claim are concerned. Itis uncertain, however, whether an American court will always give similar effect to the foreign mles ofprivityin determining whatpersons, other thantheparties, areboundby thejudgment (compare § 94, Comment d) and to the foreign mles as to splitting a claim or as to collateral estoppel (compare§ 95, Comments e and g). Normally, an American court would applythe foreign rules as to these matters ifthese rules are substantiallythe same as the rules ofthe American court. Itis also uncertain what effect would be givenby an American court to foreign rules ofresjudicata withrespect to findings bythe court that it hadjurisdiction overthe defendant or over a thing or status orthat ithad competence overthe subject matter ofthe controversy (see§§ 96-97). RESTATEMENT§ 98 cmt. g (Supp. 1989). 

### 12No. 88045-0
We first note thatthere is a distinction to be drawn between ajudgmentthat suffers some defect that makes it unenforceable in the rendering country and the claim here that mechanisms are not in place for enforcement. This appears to be apervasive issue in Japan that extends to civiljudgments in general and more particularly to family court decrees. 6 Next, while Paul is ostensibly relying on Japanese law, the materials he has submitted are ofa more general nature, i.e., law review articles and travel warnings rather than Japanese statutes orrelevant court decisions. Third, even assuming that Akiko's ability to enforce the child supportjudgmentin the decree is relevant, the record indicates thatthe United States military has apolicy offacilitating service members' child support obligations. Althoughthe record is not entirely clear, it suggests that at least at one pointthe military inquired and was apparently satisfiedthatPaul was making required support payments. Fourth, declining comity on the groundthat enforcement is difficult in Japan wouldbe counter to our own strong state policy favoring satisfaction of child support obligations and counterto the Japanese court's determinationthat Paul has
a legal requirement to satisfy unpaid child support. In this respect our state law comports with the Japanese award ofchild support. It is troubling that a party mightpreclude comity applying to ajudgmentbased on the difficulty ofcollection in the foreignjurisdictionwhenpayment ofthe underlying
6 Evidently, support is generally voluntary and family court orders are widely recognized as unenforceable. Colin P.A. Jones, In The BestInterests of the Court: WhatAmericanLawyers Need to Know about Child Custody and Visitation in Japan, 8 ASIAN-PAC. L. & PoL'Y I. 166, 247 & n.314 (2007), cited in Estate ofToland, 170 Wn. App. at 842; see Satoshi Minamikata, Resolution of Disputes over ParentalRights andDuties in a Marital Dissolution Case in Japan: A NonlitigiousApproach in Chotei Family CourtMediation, 39 FAM. L.Q. 489, 493-94, 502-03 (Summer 2005), cited in Estate ofToland, 170 Wn. App. at 842. 

### 13

### No. 88045-0 obligation has been entirely in the control ofthe same party who does not wantthe judgmentrecognized. Comity is a doctrine ofpractice, convenience, and expediency, and it involves exercising respect for and deference to the legal determinations in another country. Haberman, 

### 109 Wn.2d at 160-61. Finally, and most importantly, the Japanese decree is valid and states a legally cognizablejudgmentfor child support. Under the specific facts here, we will not refuse comity on the ground that Akiko might be unable to enforce the decree in Japan. The next question is whether the trial court abused its discretion as a matter oflaw by deciding that whether comity applies depends upon the guardianship proceedings and whether Paul had notice ofthese proceedings sufficientto satisfy due process in this country. "Atrial court abuses its discretion by issuing manifestly unreasonable rulings or rulings based on untenable grounds, such as a ruling contrary to law." Lakey v. Puget SoundEnergy, Inc., 

### 176 Wn.2d 909, 919, 296 P.3d 860 (2013) (citing Wash. State Physicians Ins. Exch. &

### Ass'nv. Fisons Corp., 

### 122 Wn.2d 299, 339, 858 P.2d 1054 (1993)). We conclude that in basing the decision about comity onthe entirely separate guardianship proceeding, the trial court made an error oflaw that constitutes an abuse of discretion. Akiko obtained the guardianship almost two years after the divorce decree was :final and only after Etsuko committed suicide. There is nothing on the face ofthe guardianship that connects it to the divorce decreejudgments. Akiko was not a party to the divorce decree and is not a namedparty in estate proceedings here. 

### Put simply, the
14

### No. 88045-0 guardianship is unrelatedto the divorce decree andhas no bearing onthe issue ofcomity andits applicationto the divorce decree as a matter oflaw. Paul claims, though, thathis parentalrights were violatedbythe guardianship proceeding inthe absence ofnotice to him. The Court ofAppeals ofMaryland disagreed, reasoning that a guardianship is distinct from andnot equivalentto a custody determination andthe Japanese guardianship didnot sever Paul's custodialrights to his child. 

### Toland, 425 Md. at 390. The court declinedto grant Paul's request "to review all Japanese child custody law, including the methodology and criteria for awarding custody,
eventhough there was no custodial determinationinthe present case." 

### !d. The court concludedthat "[a]nyquestionregarding Erika's custody, whichis notripe, would require us to render an advisory opinionbasedupon 'amatterinthe future, contingent anduncertain,' whichis 'along forbidden practice inthis State."' 

### !d. (quoting

### Hickory PointP'ship v. AnneArundel County, 316Md. 118, 129, 557 A.2d 626 (1989)). In our view, the Maryland court appropriately declined to address custodymatters that were notripe for review. Although we are not faced with a custody action, similar
concerns are presentinthat Paul asks that we decline to permit anyrecognition ofa Japanese court decree based on a view ofthe entirety ofJapanese law andpractice involving children ofJapanese and non-Japanese parents andthe possibilityoffuture improprietyinhis own case ifhe triedto obtain custodyinJapan. Paul wants us to assume that the guardianship effectively determines custody, thathis parental rights have beenviolated, andthat his rights wouldbetrammeled shouldhe try to pursue a custody
15

### No. 88045-0
claim in Japan. Like the Maryland court, we do not consider the guardianship to be conclusive on the matter ofcustody, particularly in light ofhis own expertwitness's testimony. And unlike the circumstances in much ofthe secondary authority Paul cites, this case does notpresent questions ofcustody as between a Japanese and non-Japanese 7 

### parent.The trial court's grant ofsummaryjudgmentwas based on its erroneous consideration ofthe guardianship proceedings. As the court determined, absent consideration ofthe guardianship, the divorce decree meets the requirements for comity to apply. Upon reversing summaryjudgment, we may direct summaryjudgment in favor ofthe nonmoving party ifthere are no disputed material facts and as a matter oflaw the nonmoving party is entitled to summary judgment. See, e.g., Impecoven v. Dep 't

### of Revenue, 

### 120 Wn.2d 357, 365, 841 P.2d 752 (1992); Rubenser v. Felice, 

### 58 Wn.2d 862, 866, 365 P.2d 320 (1961). The Estate is entitled to summaryjudgment on the issue whether the divorce decree should be recognized as a valid foreignjudgment. The dissent complains about our grant ofsummaryjudgmentin favor ofthe nonmoving party, saying that Paul has not had the opportunity to respond to a motion for

7 We also decline to address the matter ofchild abduction. We do not agree that when Etsuko and Paul separated and she took Erika with her to live at Akiko's home, Etsuko "abducted" Erika. Unlike the usual cases discussed in the materials that Paul has submitted, Etsuko did not abscond with Erika or secrete her away. She informed Paul where she was and the two ofthem were after the separation, and she and Paul proceeded through mediationtogether, where he had visitation rights that he did not fully execute. While the secondary authority that Paul submits indicates there is a problem with international child abductions to Japan, it is not an issue that we need address in this case. 

### 16No. 88045-0
summaryjudgment. However, this will oftenbe the case when a reviewing court concludes that summaryjudgment should be granted in favor ofthe nonmoving party. The dissent believes, though, that Paul should have the chance to produce evidence showingpossible disputed issues ofmaterial fact and, in particular, evidence showing whether entering the foreign order would be repugnant to publicpolicy or be unjust. Dissent at 3. But fact questions that the dissent thinks are material concern whether the Japanese courtwould respect Paul's rights as aparent ifhe had sought custody or whether, ifhe obtained an order giving him custody, he would be able to enforce it. The dissent thinks that depending on whether Paul canprove his allegations, it may be unjust
or repugnant to public policy to require Paul to pay thejudgmentunderthe divorce decree.Butthis case concerns the question whether the divorce decree enteredtwo years beforethe guardianship proceeding will be recognized. Paul had notice ofthe divorce proceedings, was a party to the litigation, was represented by a Japanese firm familiar with Japanese divorce law, and had the assistance offour attorneys. Notwithstandingthe moneyjudgmentunder the decree, he chose notto appeal the divorcejudgment, although he had the opportunity to do so, and thus did not challenge the child support awarded in the decree. Paul has never actually sought custody ofErika.8

8 Itis also important to bear in mind that under Washington law, payment ofachild support obligation cannot be conditioned on custody or visitation privileges. E.g., Ma(fait v. Malfait, 54 Wn.2d 413,417-18, 341 P.2d 154 (1959) ("[t]he question ofcustody and support ofchildren is not to be determined upon the basis ofthe desires ofthe parties or used as apenalty or reward for 

### 17No.**88045~0** As a matter oflaw, the divorce decree should be recognized under**well~settled** principles ofcomity. CONCLUSION The Japanese divorce decree is a valid foreignjudgmentthat meets requirements for comity, as both the trial court and the Court ofAppeals correctly determined. As a matter oflaw the trial court abused its discretion when it nevertheless declined to accord comity to the divorce decree based upon guardianship proceedings occurring almosttwo years after the divorce decree was final. Accordingly, the trial court improperly granted summaryjudgment dismissal to Paul Toland and the Court ofAppeals erroneously affirmed that decision. We reverse the Court ofAppeals andremand with directions that summaryjudgmentbe granted in favor ofthe Estate and the divorce decree berecognized
as a validjudgmentinthis state.

their conduct"; the father's obligation to provide payments for the support ofhis child is not contingent upon the continued exercise ofa granted right ofvisitation); Wheeler v. Wheeler, 3 7 Wn.2d 159, 222 P.2d 400 (1950) (the father's inability to visit the children does not relieve him from paying support). 18No. 88045-0

WE CONCUR:



### 19In re Estate of Toland, No. 88045-0 (Wiggins, J., concurring in part/dissenting in part)

No. 88045-0
WIGGINS, 

### J. (concurring in part/dissenting in part)-1 disagree with the majority opinion because it grants summaryjudgment to a nonmoving party. Paul Toland, the party against whom the majority enters summaryjudgment, did not receive notice that the court was considering summary judgment against him. This absence of notice deprived him ofthe opportunity to demonstrate triable issues. Without knowing what facts would have existed if PauP had had the opportunity to respond, the majority enters summaryjudgment. The Washington State Court Rules do not authorize courts to grant summary judgment to nonmoving parties. The rules permit summary judgment if "there is no genuine issue as to any material fact and
...the moving party is entitled to ajudgment as a matter of law." CR 56(c) (emphasis added). This is in contrast to the Federal Rules of Civil Procedure. See Fed. 

### R. Civ. 

### P. (FRCP) 56(f)(1 ). In 2010, the United States Supreme Court amended the federal rules to address granting summary judgment to nonmoving parties. See FRCP 56 Advisory Committee Notes, 2010 Amendments. The amended rules provide, "After giving notice and a reasonable time

1 Like the majority, we refer to the Tolands by their first names, meaning no disrespect.In re Estate of Toland (Wiggins, J., concurring in part/dissenting in part) to respond, the court may ... grant summaryjudgment for a nonmovant
...." FRCP 56(f)(1 ). Paul had neither notice nor a reasonable time to respond. Therefore, we should not enter summaryjudgment against him. While I agree with the majority that the trial court erroneously granted summaryjudgment in his favor, Iwould remand the case to the trial court. Consequently, I concur in part and dissent in part. I first discuss comity because whether Paul is "entitled to judgment as a matter of law" depends on our analysis of the doctrine and its exceptions. I conclude by analyzing whether the parties are entitled to summaryjudgment. I. Comity Our decision depends heavily on the doctrine of comity. Comity is the recognition of a foreign state's legislative, executive, or judicial acts by our State. Mayekawa Mfg. Co. v. Sasaki, 76 Wn. App. 791, 799, 888 P.2d 183 (1995); see Haberman 

### v. Wash. Pub. PowerSupp/ySys., 109Wn.2d 107, 160-61,744 P.2d 1032, 750 P.2d 254 (1987). It is not a rule of law. Mayekawa Mfg., 76 Wn. App. at 799. Rather, we extend comity out of deference and respect and for the purposes of practice, convenience, and expediency. Haberman, 109 Wn.2d 160-61. It is not an imperative or obligation upon our courts but lies within their discretion. /d.; New W. Fisheries, Inc. 

### v. Dep't of Revenue, 106 Wn. App. 370, 379, 22 P.3d 1274 (2001); MacKenzie 

### v. Bartha/, 142 Wn. App. 235,240, 173 P.3d 980 (2007); State 

### v. Medlock, 86 Wn. App. 89, 96, 935 P.2d 693 (1997). While comity is not a rule of law, case law has developed well-established principles for the doctrine. As a general rule, "'[a] valid judgment rendered in a foreign nation after afairtrial in a contested proceeding will be recognized in the United States 

### 2In re Estate of Toland (Wiggins, J., concurring in part/dissenting in part)
so far as the immediate parties and the underlying cause of action are concerned."' Rains 

## v. Dep't ofSoc. 

### &Health Setvs., 98 Wn. App. 127, 135, 989 P.2d 558 (1999) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS§ 98 (1971 )). However, we will not recognize otherwise valid foreign orders if they are repugnant to the public policy of our state or '"inflict an injustice on our own citizens."' MacKenzie, 142 Wn. App. at 240 (quoting Reynolds v. Day, 79 Wash. 499, 506, 140 P. 681 (1914)). When deciding whether to extend comity, we examine whether there was evidence of "prejudice in the court" or, under the law, "fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect
...." Hilton 

## v. Guyot, 159 U.S. 113, 202-03, 16 S. Ct. 139, 40 L. Ed. 95 (1895). Here, the majority holds that the trial court abused its discretion by considering the guardianship proceeding when denying comity. Majority at 14. The majority fails to cite any case law stating that a court may not look to facts occurring after entry of a foreign judgment or to subsequent proceedings. The majority simply concludes that the guardianship proceeding is unrelated to the divorce, the proceeding "has no bearing on the issue of comity," and the trial court abused its discretion by considering the proceeding. 

### /d. I disagree. Atrial court should be free to examine all relevant facts when deciding whether to exercise its discretion and grant comity. 2 Our court should not limit the equitable

2 Ajudge could reasonably conclude that the guardianship proceeding is potentially relevant to whether an exception to comity applies. Both proceedings concerned Paul's rights as a parent. 

### 3In re Estate of Toland (Wiggins, J., concurring in part/dissenting in part) factors a trial court may consider in deciding whether to grant comity. Here, the trial court should have been free to examine all relevant facts, including the guardianship proceeding. Instead, the majority looks onlyfor a valid judgment. See majority at 17. It refuses to examine whether Paul's parental rights were otherwise violated. II. NeitherParty Is Entitled to SummaryJudgment Summary judgment is appropriate only ifthe moving party establishes that no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(a), (c). We grant motions only if reasonable people could reach one conclusion based on the evidence when viewing the facts in the light mostfavorable to the nonmoving party. Korslund

## v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Here, I agree with the majority that Paul is not entitled to judgment as a matter of law but disagree with the majority's reasoning. It was not an error forthe trial court to consider the guardianship proceeding; nonetheless, the proceeding did not entitle Paul to judgment as a matter of law. The evidence before the court, when viewed in the light mostfavorable to the estate, does not rise to such an extreme level of injustice as to invoke an exception to comity. Therefore, I would reverse the order granting Paul summaryjudgment. However, the majority goes beyond simply reversing the order granting summaryjudgment. It holds that the Estate is entitled to judgment as a matter of law. I disagree with its assessment. Paul had no notice or opportunity to respond to a motion for summaryjudgment by offering evidence ofa genuine issue of material fact. The majority effectively holds 

### 4In re Estate of Toland (Wiggins, J., concurring in part/dissenting in part) that Paul could never prove that enforcing the divorce decree would trigger an exception to comity. This confuses a discretionary doctrine with a strict rule of law. It also assumes that we have a complete record. We do not have a complete record. Paul limited his motion for summary judgment and the attached affidavitto a very narrow issue. The issuewas in response to the court's ruling that it would not register the divorce decree unless, at a minimum, the estate proved that Paul was given notice of the guardianship proceeding. Paul was not afforded notice, so he filed for summary judgment on this lone issue, submitting a two-and-a-half-page affidavit. Summary judgment should be granted only after Paul has a full and fair opportunity to show a genuine issue of material fact. See Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011); Moton 

### v. Cowart, 631 F.3d 1337, 1343 (11th Cir. 2011); Penobscot Indian Nation v. Key Bank ofMe., 112 F.3d 538, 562 (1st Cir. 1997) (Courts may grant summary judgment sua sponte. "Two conditions, however, circumscribe the district court's exercise of this power: first, discovery must be 'sufficiently advanced that the parties have enjoyed a reasonable opportunity to glean the material facts;' second, the district court must 'give[] the targeted party appropriate notice and a chance to present its evidence on the essential elements of the claim or defense."' (alteration in original) (quoting Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996))). For these reasons, we should reverse summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.



### 5In re Estate of Toland (Wiggins, J., concurring in part/dissenting in part)

I concur in part and dissent in part.

6