Case of the Day: Estate of Toland v. Toland

The case of the day is Estate of Toland v. Toland (Wash. Ct. App. 2012). Paul Toland, a US naval officer, married Estuko Toland, a Japanese woman, while stationed in Japan. Estuko sought and received a divorce while the couple was living in Japan, and the divorce decree included a division of property, an order awarding Estuko custody of the couple’s child, and awards of child support and damages to Estuko. After Estuko’s death, her family sought and obtained guardianship of the child without giving Paul notice of the proceedings. Estuko’s estate sought to register the Japanese divorce decree in Washington under the UFCMJRA. Paul moved to dismiss, and the judge granted the motion. The decision doesn’t give the reasoning, but presumably the judge found that a divorce judgment is not within the scope of the statute—UFCMJRA § 3(b)(3) expressly excludes divorce and other domestic relations judgments. The Estate then sought recognition and enforcement on ordinary comity grounds—the statute (§ 11) provides: “This act does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this act.” The judge refused to recognize or enforce the judgment, and on appeal, the court affirmed.

The court found that the portion of the decree regarding guardianship of the child did not pass muster. The Japanese court denied Paul procedural due process because he had no notice of the guardianship proceeding (even though he had participated in the divorce proceedings prior to his wife’s death). The Japanese court also, in the Washington court’s view, denied Paul substantive due process, because under the Due Process Clause parents have a fundamental right to the care, custody, and control of their children, and Japanese law, while taking a parent’s rights into account as one factor among many, has no presumption that a parent should be entitled to custody. The court accepted the trial judge’s finding that under Japanese law, in effect Paul had a “slim to none” chance of actually obtaining custody. The court also found that recognition of the judgment would violate Washington public policy, which, like the Due Process Clause, protects the parent-child relationship.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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