Opinion
A100735.
11-14-2003
In re the Marriage of RONNIE JACARANDA and EDWARD ELIO GALANTE. RONNIE JACARANDA SUMMERFIELD, Appellant, v. EDWARD ELIO GALANTE, Respondent.
Ronnie Jacaranda Summerfield (wife) and Edward Elio Galante (husband) met in San Francisco in 1984 and, in 1985, were married in Zimbabwe where wife, a British citizen, was raised. After the wedding, the couple returned to San Francisco. Their two children were born in California in 1988 and 1990, and, in 1992, the family moved to Zimbabwe. Husband and wife prospered in developing real estate in that country, but the marriage foundered. Their separation in 1997 initiated a flurry of litigation, first in Zimbabwe and then in California, covering the domestic relations landscape: property division, child and spousal support and custody-visitation. The international element provides the backdrop for the question we address: Does the pendency of an earlier filed domestic relations case in a foreign country divest a California court of jurisdiction over property and support issues involving the same marriage dissolution? We conclude that it does not and reverse.
This appeal is one of two appeals pending in this court. It arises from wifes petition for legal separation to decide financial issues of child support, spousal support, and division of property. It bears emphasizing that the issue of child custody is not before us in the present appeal.
PROCEDURAL BACKGROUND
The action for dissolution of marriage was initially filed by wife in the Zimbabwe court in 1998, but she voluntarily dismissed the action on the eve of trial in December 2000. The following day, husband filed his own action for dissolution of marriage in that court. Wife then raised a challenge in the Zimbabwe court to that courts jurisdiction to hear the dissolution action. Wife argued that husband was a resident of California, not Zimbabwe. In addition, wife filed her petition for legal separation in California, in September 2001. In the California action, husband filed two separate motions to quash. He moved to quash service of summons on the ground that the California court lacked personal jurisdiction over him, as he and the marital property were in Zimbabwe. He also moved to quash the proceeding or, in the alternative, to stay the proceeding on the grounds that (1) another action on the same issues was pending in Zimbabwe; and (2) California was an inconvenient forum.
Wife was residing in Zimbabwe when she filed the legal separation action, but she later submitted a declaration that she and the children had moved to California with the intent to reside here permanently.
While husbands motions to quash were pending in California, the trial judge in Zimbabwe rejected wifes jurisdictional challenge. Wife appealed that decision on jurisdiction to the Supreme Court of Zimbabwe. Her appeal was still pending at the time the trial court in California heard husbands motions to quash.
Wife responded to husbands motions to quash the legal separation action with a motion of her own asking the court to take exclusive jurisdiction over the financial issues. Wife argued, among other things, that the only issues that had been raised by husband in the Zimbabwe dissolution action were dissolution of the marriage bonds and child custody; issues of support and property division were not pending. Husband opposed that motion with documentation that his initial pleading in the dissolution action had been amended to include issues of support and property division.
The trial court in the present action held three separate hearings on husbands motions to quash. At the first two, held on February 13 and March 13, 2002, the trial court declined to rule pending the Zimbabwe courts determination of its jurisdiction over the dissolution action. At that time, the date set for trial on the Zimbabwe dissolution action was June 3, 2002, and the hearing on husbands motions to quash was continued until June 19. On June 7, 2002, husbands attorney notified the court that the trial date for the Zimbabwe dissolution action had been continued until July 22, 2002. The order of the Zimbabwe court further indicated that the court intended to proceed to trial notwithstanding wifes appeal on jurisdiction; her request for a stay was denied. Thereupon, on June 13, 2002, the court held its third hearing on husbands motions to quash. By written order filed July 10, 2002, the court granted the motions, finding that the court lacked jurisdiction to proceed because the Zimbabwe court had taken jurisdiction over the dissolution. Wife appeals from that order.
Just days after the trial courts ruling, on July 22, 2002, trial began in the Zimbabwe court on the dissolution action. The Zimbabwe court dissolved the marriage bonds in open court and then, on October 1, 2002, issued its ruling concerning child custody, support, and division of marital property. Just prior to that ruling, in September 2002, the Zimbabwe Supreme Court rejected wifes appeal on the question of jurisdiction.
The judgment of the Zimbabwe court called for return of the children to Zimbabwe under the custody of wife, but if the children were not returned, custody would be awarded to husband. The Zimbabwe court ordered husband to pay wife a lump sum payment for support of Z$3.6 million and found that wife should receive no distribution of marital property. Wife alleges that because of the devaluation of Zimbabwean currency, the support award is actually worth only US$3,600.
Meanwhile, also on July 22, 2002, wife moved for reconsideration of the trial courts ruling on husbands motions to quash. Husband opposed the motion and further argued that, in any event, the Zimbabwe court had rendered its judgment on the dissolution action and that judgment served as a bar to the legal separation action under the doctrine of res judicata or made the legal separation action moot. The trial court denied wifes motion for reconsideration.
Wifes grounds for reconsideration were that new evidence had come to light in discovery in Zimbabwe concerning marital property in California, that the worsening conditions in Zimbabwe justified the assumption of jurisdiction by the California court, and that at the time husband filed his motions to quash the issues presented in the Zimbabwe dissolution action did not include spousal support or division of marital property.
DISCUSSION
I. Appealability
During the pendency of this appeal, we ordered wife to submit a copy of a judgment of dismissal or show cause why her appeal should not be dismissed. Wife declined to obtain a judgment of dismissal from the trial court; instead, she submitted argument that no such judgment is necessary.
First, wife argues that an order granting a motion to quash service of summons is an appealable order. While that is indeed true (Code Civ. Proc., § 904.1, subd. (a)(3)), it is beside the point. As will be seen in the discussion in part II, below, the motion granted by the trial court was not a motion to quash service of summons; it was a motion to quash the proceeding pursuant to former rule 1230 of the California Rules of Court. In actions for dissolution of marriage or legal separation, a motion to quash the proceeding serves as a substitute for a demurrer. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 849, p. 310.) Like an order sustaining a demurrer, an order granting a motion to quash the proceeding is an interlocutory order. The trial court may grant leave to the petitioner to amend the petition or, if the defect is incurable, the court may dismiss the action. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2003) § 4:120, p. 4-38.) An appeal is properly taken from the dismissal. (See Miller v. Miller (1998) 64 Cal.App.4th 111, 116.) Here, although husbands counsel repeatedly characterized his motion as a motion to "quash or dismiss," the trial court entered only an order granting the motion to quash. The written order does not indicate that the proceeding was dismissed.
All further rule references are to the California Rules of Court.
Wife further contends that despite the omission in the written order, the trial courts order should be construed as a judgment of dismissal. We agree. At the hearing held June 13, 2002, the trial court heard proceedings in both wifes legal separation action and husbands action for registration of the Zimbabwe custody order. At the hearing, the court ruled that the wifes request for temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3424, subd. (a)) was deemed filed within husbands action for registration of the foreign order. Thereafter, no custody issues remained in wifes action for legal separation. We hereby grant wifes request to augment the record to include the minute order of October 16, 2002. That order reveals that on that date the trial court denied wifes motion for reconsideration of the ruling on husbands motion to quash the proceeding and further ordered that "[a]ny further proceedings in this matter are limited to enforcement of the [Zimbabwe court] orders . . . . Matter consolidated into and under case number FMS-02-385058. No further pleadings shall be filed in case number FDI-01-043107." We agree with wife that the trial court essentially dismissed the legal separation action. We further observe that in their briefs on appeal the parties have construed the order granting husbands motions to quash as an order of dismissal. We will treat the order granting the motions to quash as a final judgment of dismissal from which wifes appeal lies.
II. Personal Jurisdiction
The trial courts order granting husbands motions to quash states as follows: "The court adopts husbands pleadings as its legal and factual findings and grants husbands motion to quash. The court finds more specifically that the court in Zimbabwe has taken jurisdiction and that such jurisdiction is properly in Zimbabwe, and that until Zimbabwe relinquishes jurisdiction to the California court (which is completely within the discretion of the court of Zimbabwe), this court may not take jurisdiction from it."
That order does not seem to have been based on the lack of personal jurisdiction over husband, nor could it have been. By moving to quash the proceeding pursuant to former rule 1230, husband appeared in the action. (Former rule 1236, now rule 5.120(a)(3).) Husband could have made a special appearance by moving to quash the service of summons on the ground of lack of personal jurisdiction (former rule 1234), and indeed husband did so. However, husband went further; he also filed a motion to quash the proceeding, a form of pleading recognized in dissolution and legal separation actions as akin to a demurrer. (Compare Code Civ. Proc., § 430.10 and former rule 1230; 5 Witkin, Cal. Procedure, supra, Pleading, § 849, p. 310.) Like a demurrer, this motion constitutes a general appearance, which is deemed a consent to jurisdiction and a waiver of any objection to personal jurisdiction. (Code Civ. Proc., § 1014; former rule 1236, now rule 5.120(a)(3); see 2 Witkin, Cal. Procedure, (4th ed. 1996) Jurisdiction, §§ 184, 190, pp. 747, 756.) The trial court had personal jurisdiction over husband.
Former rule 1230 was repealed effective January 1, 2003. Rule 5.120, while not expressly authorizing a motion to quash the proceedings, as former rule 1230 did, continues to recognize the motion. Rule 5.120 provides that the respondent appears in the action when he or she files a motion to quash the proceeding based on enumerated grounds, including a prior action pending between the parties.
The trial courts adoption of husbands "pleadings" suggests the court recognized husbands appearance in the action.
Husband also filed a responsive declaration in opposition to wifes subsequent motion for concurrent jurisdiction over financial issues, but he purported to be making a "special appearance."
III. Another Action Pending
A. Within California
When another action is pending in California between the parties on the same cause of action, there is an absolute right to a stay of the second action to await the outcome of the first. (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574.) This stay is justified because a judgment in the first action could be pleaded as res judicata to the second action. (Lord v. Garland (1946) 27 Cal.2d 840, 848-849.)
In ordinary civil cases, the issue may be raised by demurrer on the ground of another action pending. (Code Civ. Proc., § 430.10, subd. (c).) In actions for dissolution of marriage or legal separation, a demurrer is not an authorized pleading. (Fam. Code, § 2020; former rule 1215(a), now rule 5.108(a).) Instead, the California Rules of Court provide for a motion to quash the proceeding, which serves as a substitute for a demurrer. (See 5 Witkin, Cal. Procedure, supra, Pleading, § 849, p. 310; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 4:105, p. 4-34.) The grounds for this motion parallel those raised by demurrer and include another action pending between the parties. (Former rule 1230(a)(2), now rule 5.120(a)(3)(B).)
The appropriate disposition when another action is pending is not to sustain the demurrer (or grant the motion to quash) and dismiss the action. Instead, the court should retain jurisdiction and enter an interlocutory judgment postponing trial of the second action until the first is finally determined. When a final judgment is ultimately rendered in the first action, the party asserting the plea of abatement can then be granted leave to plead the res judicata effect of the judgment as a bar of the subsequent action. (Code Civ. Proc., § 597; Lord v. Garland, supra, 27 Cal.2d at pp. 850-851; see also Shuffer v. Board of Trustees (1977) 67 Cal.App.3d 208, 217; see 5 Witkin, Cal. Procedure, supra, Pleading, § 924, pp. 382-384.) Conversely, if the prior litigation is not resolved on the merits, the trial court in the second action will proceed to hear and decide the dispute. (Lord, at p. 851.) In either event, the second action is abated in the interim, and the trial court may not allow the second action to proceed. (Code Civ. Proc., § 597; see Leadford v. Leadford, supra, 6 Cal.App.4th at p. 574;Lawyers Title Ins. Corp. v. Superior Court (1984) 151 Cal.App.3d 455, 460.)
The deference to a pending action is sometimes viewed as a question of subject matter jurisdiction: when two superior courts have concurrent jurisdiction over a controversy, the court that first assumes jurisdiction has exclusive jurisdiction. (Simmons v. Superior Court (1950) 96 Cal.App.2d 119, 124; see People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769; 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 413, p. 1022.) However, the rule of exclusive concurrent jurisdiction is actually a rule of preference; it does not divest a court of jurisdiction. (County of San Diego v. State of California (1997) 15 Cal.4th 68, 88-89; People ex rel. Garamendi, supra, at p. 769.)
B. Foreign Action
The absolute right to a stay when there is another action pending exists only when both actions are pending within the same state. (Tinney v. Tinney (1963) 211 Cal.App.2d 548, 552; Simmons v. Superior Court, supra, 96 Cal.App.2d at p. 125; see Leadford v. Leadford, supra, 6 Cal.App.4th at p. 574; 5 Witkin, Cal. Procedure, supra, Pleading, § 1067, pp. 515-516.) This distinction exists because, unlike a judgment from a California court, a judgment from a foreign state or country may not necessarily have a binding effect in California. (Dodge v. Superior Court (1934) 139 Cal.App. 178, 181; see In re Stephanie M. (1994) 7 Cal.4th 295, 314 [California court not required to give effect to guardianship order of Mexican court].)
Nevertheless, despite the absence of an absolute right to a stay, the California court in the second action has discretion to stay the proceedings pending the final outcome of the first, out-of-state lawsuit. (Leadford v. Leadford, supra, 6 Cal.App.4th at p. 574; In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1250; Tinney v. Tinney, supra, 211 Cal.App.2d at pp. 552-553; Simmons v. Superior Court, supra, 96 Cal.App.2d at p. 125 [wifes pending action in Texas for divorce and determination of property rights justified stay of husbands California suit for determination of property rights]; see 5 Witkin, Cal. Procedure, supra, Pleading, § 1067, p. 516.) Likewise, the court has discretion to deny a stay and proceed to trial. (Engle v. Superior Court (1956) 140 Cal.App.2d 71, 83.)
The trial courts discretion to stay the proceedings when another action is pending out of state is raised not by demurrer but by a motion on which factual matters outside the pleadings (and the realm of judicial notice) may be considered. Such matters include the threat of multiple litigation, the convenience of the parties, the status of the foreign action, and the competing interests of the two forums. (Leadford v. Leadford, supra, 6 Cal.App.4th at p. 575.)
The principle of "comity" (voluntary cooperation between states) may militate in favor of a stay when an action is pending in another state. (Simmons v. Superior Court, supra, 96 Cal.App.2d at pp. 124-125, 131.) But that principle is not as compelling when the first action is pending in a foreign country. (Id. at p. 130; see 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 413, p. 1023.) Two reasons underlie this distinction: " `First, because a foreign judgment depending on foreign law might be unjust, and could not be enforced beyond the jurisdiction of the foreign court without a new suit on it as only prima facie evidence; and second, and chiefly, because the remedy in the country where the last suit is brought may be more adaptable and safe, and means for effectuating a judgment may be found in the latter and not in the former country. " (Pesquera Del Pacifico v. Superior Court (1949) 89 Cal.App.2d 738, 740; see 2 Witkin, supra, at p. 1023.)
Again, however, the trial court retains the discretionary power to continue the trial in the second action to await the outcome of another lawsuit pending in a foreign country. (Pesquera Del Pacifico v. Superior Court, supra, 89 Cal.App.2d at p. 740.)
Initially, in the present case, the trial court successively postponed the hearing on husbands motion to quash the proceeding until the Zimbabwe court had decided whether or not to take jurisdiction. In so doing, the trial court effectively exercised its discretionary power to stay the proceedings. Wife does not challenge that exercise of discretion.
Wifes arguments are instead directed to the trial courts decision to grant the motion to quash the proceeding and dismiss the legal separation action. The trial courts order on the motion to quash reflects the view that the court lacked jurisdiction to proceed: "The court finds more specifically that the court in Zimbabwe has taken jurisdiction and that such jurisdiction is properly in Zimbabwe, and that until Zimbabwe relinquishes jurisdiction to the California court . . . , this court may not take jurisdiction from it." Other comments by the trial court in the record indicate the trial courts belief that because Zimbabwe was the childrens "home state" and because the Zimbabwe court had taken jurisdiction over the pending divorce, the California court had no jurisdiction over any issues.
The trial court apparently had in mind the UCCJEA (Fam. Code, § 3400 et seq.), which establishes as a basic plan that only one state—the childs "home state"—will have jurisdiction to decide custody. Except in the case of temporary emergency jurisdiction, a court of this state may not exercise jurisdiction over a child custody proceeding if another child custody proceeding has already been commenced in another state. (Fam. Code, § 3426.) The California court must stay its proceeding and communicate with the other court; if that other court does not defer to California as the more appropriate forum, then the California court must dismiss its proceeding. (Fam. Code, § 3426, subd. (b).)
Under the UCCJEA, a foreign country is treated as if it were a state, and a custody order made in conformity with the jurisdictional standards of the UCCJEA will be recognized and enforced unless the child custody laws of the foreign country violate fundamental principles of human rights. (Fam. Code, § 3405.)
Yet, a "child custody proceeding" under the UCCJEA is a proceeding in which child custody is an issue. (Fam. Code, § 3402, subd. (d).) For purposes of husbands motion to quash, custody was not at issue. Custody was treated as a separate matter. By the time the trial court ruled on husbands motion to quash, the custody issue had been shifted to the separate proceeding brought by husband for registration and enforcement of the Zimbabwe custody order. And the trial court had granted wifes request to take emergency temporary jurisdiction over custody pursuant to the UCCJEA in that other proceeding. Consequently, within the legal separation action, the granting of husbands motion to quash was necessarily directed only at the financial issues. The UCCJEA applies only to custody determinations and does not apply to questions of support or other monetary obligations. (Fam. Code, § 3402, subd. (c).) The UCCJEA does not support the trial courts ruling.
Nor does the Uniform Interstate Family Support Act (UIFSA) (Fam. Code, § 4900 et seq.) apply. The UIFSA provides a simplified procedure for establishing, enforcing, and modifying support orders when the parents live in different states. Like the UCCJEA, it seeks to ensure that only one "state" will have jurisdiction over support at any one time. When an action for support is already pending in another state, the second court may not exercise jurisdiction to make a support order unless that state is the "home state of the child." (Fam. Code, § 4908.) There is no indication in the present case, however, that Zimbabwe qualifies as a "state."
Under the UIFSA, a "state" includes a state of the United States as well as any foreign country that has been declared either under federal law or by the California Department of Child Support Services to be a foreign "reciprocating country" (i.e., one that would enforce an American support order) or has established procedures for support orders similar to the UIFSA. (Fam. Code, §§ 4901, subd. (u)(2), 4922, 4950.) The comment to the UIFSA explains that reciprocity between the states is no longer required (and has been rendered moot by the enactment of UIFSA by all 50 states), but UIFSA "does not waive reciprocity in the international context. . . . [A] foreign country . . . is defined as a `State under the Act in three situations. First, a declaration by the U.S. State Department that a foreign jurisdiction is a reciprocating country . . . is controlling for all states. Second, in the absence of such a declaration, each of the several states can make an arrangement with a foreign country . . . for reciprocal enforcement of child support. Finally, a finding may be made that a foreign jurisdiction has a law or procedure substantially similar to UIFSA. That is, a tribunal may consider whether the foreign jurisdiction also has laws and procedures that allow for a U.S. order to be recognized in that foreign jurisdiction independent of a formal reciprocity agreement." (UIFSA Com. (2001), 29D Wests Ann. Fam. Code (2003 supp.) foll. § 4901, p. 249.)
There has been no showing that Zimbabwe has been declared either by the United States State Department or by California authorities to be a reciprocating country. (U.S. Off. of Child Support Enforcement, DCL-02-34 (Dec. 4, 2002) <http://www.acf.hhs.gov/ programs/cse/pol/DCL/dcl-02-34.htm> U.S. Off. of Child Support Enforcement, Interstate Roster & Referral Guide, Cal. State Profile (as of May 10, 2002) <http://ocse3.acf. hhs.gov/ext/irg/sps/report.cfm>.) Nor did the trial court make any determination that Zimbabwe procedures parallel those of the UIFSA. Consequently, the trial court could not have relied upon the UIFSA.
In the absence of jurisdictional restrictions imposed by the UCCJEA and UIFSA, the controlling principles are those discussed above. That is, the existence of another pending action between the parties, especially an action pending in a foreign country, does not deprive the California court of jurisdiction. Rather, the court has discretion either to proceed to trial or to postpone trial in the second action until the first is finally determined and then to allow the res judicata effect of that judgment to be raised in the second action. Here, the trial court did neither. By quashing the legal separation action on the ground that the Zimbabwe court had assumed jurisdiction over the dissolution action, the trial court effectively ruled that any judgment from the Zimbabwe court would be res judicata and would bar the legal separation action. In that regard, the dismissal was premature. The trial court should have retained jurisdiction to allow the defense of res judicata to be raised and considered.
We need not delve into the issue raised by wife that the Zimbabwe dissolution action was not truly a pending action on the same cause of action, because, at the time husband filed his motion to quash, issues of support were not yet raised in the Zimbabwe dissolution action, though the issues were eventually put to the Zimbabwe court by amended pleadings and were pending by the time husbands motions to quash were heard and decided.
IV. Res Judicata Effect of Subsequent Judgment
At the time the trial court granted husbands motions to quash (July 10, 2002), there was no basis for a conclusion that the Zimbabwe judgment was res judicata. No judgment had yet been rendered by the Zimbabwe court. In fact, trial had not yet been held in that country. The Zimbabwe judgment was not rendered until after wife had filed her motion for reconsideration. This judgment was brought to the courts attention by husband in his opposition to reconsideration, in which husband argued that the Zimbabwe judgment was res judicata and justified quashing the legal separation action. For guidance of the trial court on remand, we examine husbands argument that the Zimbabwe judgment is now res judicata.
A. Property Division
A judgment from a foreign court may act as a bar under the doctrine of res judicata just as a judgment from an American court. (See Bank of Montreal v. Kough (9th Cir. 1980) 612 F.2d 467, 472-473; Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1038; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 299, p. 846.) Recognition and enforcement of a foreign country money judgment, other than one for support, are governed by the Uniform Foreign Money-Judgments Recognition Act (Code Civ. Proc., § 1713 et seq.). (§ 1713.1, subd. (2).) That act seems applicable to the Zimbabwe judgment denying wife any sum of money for division of the marital property.
Under that act, a foreign judgment that meets the statutory standards is conclusive between the parties. (Code Civ. Proc., § 1713.3.) The statutory standards ensure that the foreign judgment was rendered after a fair trial before a court of competent jurisdiction. (§ 1713.4.) However, unlike a judgment from a sister state, which is entitled to full faith and credit under the United States Constitution, a judgment from a foreign country requires an independent action to establish the judgment before it will be recognized. (& sect; 1713.3; see 164 East 72nd Street Corp. v. Ismay (1944) 65 Cal.App.2d 574, 576.) Within such an action, the foreign judgment is presumed final and conclusive, and the burden is on the party attacking the judgment to prove that the judgment should not be recognized. (§ 1713.4; 164 East 72nd Street Corp., at p. 576; but see Bank Melli Iran v. Pahlavi (9th Cir. 1995) 58 F.3d 1406, 1409 [burden of persuasion lies on party presenting judgment to show existence of judgment].) But if the party attacking the judgment succeeds in showing that the judgment was rendered by a less-than-impartial tribunal or under circumstances that do not comport with due process principles, then the judgment will not be recognized. (Bank Melli Iran , at p. 1410; Julen v. Larson (1972) 25 Cal.App.3d 325, 327-330.)
A foreign judgment will not be recognized if it was "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law," if the "foreign court did not have personal jurisdiction over the defendant," or if the foreign court did not have subject matter jurisdiction. (Code Civ. Proc., § 1713.4, subd. (a).) Additionally, the California court has discretion to decline to recognize a foreign judgment in certain circumstances: when the judgment was obtained without adequate notice or by extrinsic fraud, was based on a cause of action repugnant to the public policy of this state, conflicts with another final judgment, was contrary to a settlement agreement, or was rendered in a seriously inconvenient forum. (& sect; 1713.4, subd. (b).)
The UIFSA allows foreign support orders to be registered in this state and enforced without the need for an independent action. (Fam. Code, §§ 4951, 4952.) As discussed above, however, there has been no showing that Zimbabwe qualifies as a "state" subject to the UIFSA.
Here, no action has been brought to establish the Zimbabwe judgment. Hence, there has been no determination that this judgment should be recognized as a conclusive judgment on the division of marital property. Wife asserted below that the judiciary in Zimbabwe is in disarray and that she has been denied due process of law in the Zimbabwe court. Husband disputes this. It may well be that the trial court could find the Zimbabwe judgment to be a final and conclusive determination of the parties property disputes that should be given res judicata effect so as to bar wifes legal separation action. However, wife must first be given an opportunity to demonstrate that the Zimbabwe judgment should not be recognized.
B. Support Orders
As noted, the Uniform Foreign Money-Judgment Recognition Act does not apply to support orders. (Code Civ. Proc., § 1713.1, subd. (2).) In most cases, recognition and enforcement of foreign support orders will be governed by the UIFSA (Fam. Code, § 4900 et seq.). However, as we have already discussed, there is no indication that Zimbabwe is a reciprocating country that qualifies as a "state" under that act. In the absence of an applicable statutory scheme, the question whether a foreign country judgment should be recognized in California turns on considerations of comity. (See In re Stephanie M., supra, 7 Cal.4th at p. 314; Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 18:925, p. 18-236.) That is, the court must examine whether the foreign judgment will prejudice the rights of an American citizen or will violate domestic public policy. (See In re Stephanie M., at p. 314.) That examination must be made by the trial court on remand.
The UIFSA does not preclude the recognition of a support order of a foreign country "on the basis of comity." (Fam. Code, § 4903, subd. (a).)
V. Mootness
We reject husbands argument that wifes appeal has become moot by virtue of the Zimbabwe judgment rendered after the motion to quash was granted.
It is true that a controversy becomes moot when a final judgment is subsequently rendered in a related proceeding that determines all the issues. (E.g., Guardianship of Thomas (1954) 125 Cal.App.2d 135 [appeal from denial of guardianship to grandmother rendered moot by intervening grant of permanent custody to father by Texas court]; Keefer v. Keefer (1939) 31 Cal.App.2d 335, 337 [appeal from denial of change of venue in annulment proceeding rendered moot by subsequent judgment in dissolution action].) However, a finding of mootness presupposes that the intervening judgment is a conclusive judgment that will be given res judicata effect. In Guardianship of Thomas, the court, in finding the appeal moot, reasoned that there was no subject matter upon which the California court could rule because the Texas court had decided the custody issue and the Texas judgment was entitled to be given the same effect as a final judgment rendered here.
We agree with wife that the same rationale does not apply in the present case. As we have already explained, a judgment from a foreign country is not entitled to full faith and credit. Whether the Zimbabwe judgment on support and property division should be recognized and given res judicata effect has yet to be determined. Until that question is resolved, the case is not moot. (See Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 953.)
DISPOSITION
The order of dismissal is reversed. Costs on appeal are awarded to appellant.
We concur, JONES, P.J., STEVENS, J.