                              FILED
                              November 30, 1999

                              Cecil Crowson, Jr.
                             Appellate Court Clerk
TINA NONG MABERRY,                      )
                                        )
      Plaintiff/Appellant,    )
                                        )     Appeal No.
v.                                  )       M1999-01322-COA-R3-CV
                                    )
RICKY WAYNE MABERRY,                )       Jackson Chancery
                                    )       No. 97-48
      Defendant/Appellee.           )



                     COURT OF APPEALS OF TENNESSEE



     APPEAL FROM THE CHANCERY COURT FOR JACKSON COUNTY

                         AT GAINESBORO, TENNESSEE


               THE HONORABLE C. K. SMITH, CHANCELLOR




RICHARD BROOKS
215 Smotherman Avenue
P. O. Box 255
Carthage, Tennessee 37030
       ATTORNEY FOR PLAINTIFF/APPELLANT




BOBBY JAMES ELLIS
111 South Union
P. O. Box 192



                                                                    Page 1
Gainesboro, Tennessee 38562
       ATTORNEY FOR DEFENDANT/APPELLEE




                                AFFIRMED AS MODIFIED
                                   AND REMANDED




                                                          WILLIAM B. CAIN, JUDGE

                                  OPINION

           Tina Nong Maberry, (“Wife”), and Ricky Wayne Maberry, (“Husband”),
were allegedly divorced by court decree entered in the district court of Naha,
Okinawa, Japan, on August 23, 1993. The action at bar was commenced when Wife
filed suit in chancery court in Jackson County, complaining that the alleged decree
failed to dispose of Husband’s military retirement benefit as marital property “
although the District Court of Naha, Okinawa, Japan is believed to have had
jurisdiction to do so.”1


           Husband, for his part, raised the affirmative defense of res judicata,
arguing that since the Japanese court refused to dispose of his retirement benefit,
Wife should be estopped from rearguing the issue. In his cross claim Husband
complained that while the alleged foreign decree awarded him custody of the parties’
child, it lacked any child support award. 2 The court below found in pertinent part as
follows:
           ...it appearing to the court that the original Complaint, seeking to
           obtain, for the plaintiff, a portion of the defendant’s military
           retirement is without merit and should be dismissed.

           It further appearing to the Court that the Petition requiring the
           original Plaintiff/Counter-Defendant to pay child support is
           without merit and should be dismissed.


                                                                                         Page 2
             IT    IS     THEREFORE            ACCORDINGLY         ORDERED,
             ADJUDGED and DECREED that the original Complaint in this
             cause, seeking to obtain a portion of the Defendant Ricky Wayne
             Maberry’s retirement be and the same is dismissed and the costs
             thereof is taxed to the Plaintiff, Tina Nong Maberry [sic].

             IT IS FURTHER ORDERED, ADJUDGED and DECREED by
             the Court that the Petition for child support be and the same is
             hereby dismissed and the costs of that is taxed to the petitioner,
             Ricky Wayne Maberry [sic].

             Wife appeals from the action of the trial court, and argues that the
dismissal was on res judicata grounds which were not effectively proven below.
For the reasons and under the authorities cited infra, we hold that the alleged foreign
decree does not operate as res judicata. We find dismissal proper, however, for
other reasons.


             Much is made by both parties of the lower court’s apparent interpretation
of the foreign decree as having preclusive effect on Wife’s claim. The source of
Wife’s appeal is the set of statements from the bench regarding res judicata. Said
the court:
             Well that’s fine. I’ve still made my Findings of Fact and
             Conclusions of Law. No attorney fees. I’m denying any relief to
             the plaintiff. And I would say that ultimately the child support
             issue will probably meet with the same type of finding here. You
             know, you are over there and you enter this order, and you just
             leave out these important things. And I get the sense that all of
             these things may have been left out, but they probably was part
             of the deal. [sic] You know, every time there’s – I always hate to
             hear these, any kind of modification of final decree. Because we
             want to take one little part out of the whole puzzle and work on it.
               And sometimes one little part doesn’t look right. But when you
             look at the whole puzzle, all the parts fit in there real well
             together.

             And that’s what I have to assume here is that all of these things
             were anticipated. And all of them should have been, could have
             been, were tried, were disposed of, were settled. I’m talking
             about every one of them, including child support. I’d have an
             equally difficult time making this lady pay child support, based


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         upon the fact that, you know, apparently it was taken care of
         over there. I just have to assume it’s part of the deal.

         Of course, we’re dealing with a jurisdiction that we don’t know
         much about, how they handle divorces, what goes on over there.
          But you know, you stipulated that a divorce was granted over
         there. And that’s, that’s enough for me. All issues were taken
         care of, you know.

         I’m finding based upon the testimony, stipulations that I’ve
         heard, exhibits entered here today, that’s my finding and
         conclusions of the law. And if you need them typed up, get them
         from the Court Reporter. Thank You.


As this court has stated numerous times before:
         In order to succeed on a plea of res judicata, or estoppel by
         judgment, the party raising the defense must plead it,
         Tenn.R.Civ.P. 8.03, and must carry the burden of proving it.
         Carter County v. Street, 36 Tenn.App. 166, 252 S.W.2d 803
         (1952). To carry that burden, the party raising the defense must
         generally put in evidence the record or a copy of the record of
         the former case. American National Bank v. Bradford, 28
         Tenn.App. 239, 188 S.W.2d 971 (1945). If the record does not
         conclusively show that a particular matter was determined in the
         former proceeding, the party relying on res judicata as a defense
         must supplement the record by other proof. Carter County v.
         Street, 36 Tenn.App. 166, 252 S.W.2d 803 (1952).

Gregory v. Gregory, 803 S.W.2d 242, 243-44 (Tenn. Ct. App. 1990). While it is
true that “parol evidence is always admissible to show the fact, even if it appears
prima facie[,] that a question has been adjudicated, where the record does not show
that it was actually settled,” Fowlkes v. State, 82 Tenn. (14 Lea) 14, 19 (1884); the
presupposition regarding parol evidence is the existence of the allegedly preclusive
record in the enforcement record. Yet neither Husband nor Wife elected to register
the judgment of the District Court of Naha. Husband’s counsel attempted to enter
into the record a copy of the foreign decree. Wife’s counsel successfully objected
to the entry, alleging as grounds Husband’s failure to register the judgment pursuant
to section 104 of Tennessee’s version of the Uniform Enforcement of Foreign
Judgments Act. Tenn. Code Ann. §§ 26-6-101, et. seq. Section 103 of the Act



                                                                                        Page 4
defines “foreign judgment” as “...any judgment, decree, or order of a court of the
United States, or of any other court which is entitled to full faith and credit in this
state.” Tenn. Code Ann. § 26-6-103. The full faith and credit clause of the Federal
Constitution, Article 4, section 1, only applies to states and territories of the United
States of America and not to foreign countries.       In re: Franceschi’s Estate, 70
S.W.2d 513 (Tenn. App. 1933).        Although there is a split of authority nationally
regarding whether the Uniform Enforcement of Foreign Judgments Act applies to a
decree from a foreign country because full faith and credit is not involved, at the
very least, registration would have afforded this chancellor an opportunity to view
the Japanese decree with an eye toward safeguarding the principles of due process
and finality of litigation. See Restatement (Second) of Conflicts of Law §98, cmt. b;
see also 50 C.J.S. Judgment §1033 (1997). Yet to date no copy of the Japanese
decree, registered or otherwise, appears in the record. Since no judgment was
adequately proven, dismissal on the grounds of res judicata is improper.


          For her part, however, Wife still must establish the foreign decree to
survive a motion to dismiss for failure to state a claim.          See Tenn. R. Civ.
P.12.02(6). Due, curiously enough, to Wife’s own objection, the court below was
afforded no opportunity to apprize itself of the decree’s content.         Under such
circumstances, Wife’s claim under that alleged decree cannot be substantiated.
Through comity, a valid judgment 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. See Restatement (Second) of
Conflict of Laws §98 (1989); Robert A. Leflar et al., American Conflicts of Law §
84, at 169-171 (3d ed. 1977). While the subject matter and in personam jurisdiction
of a foreign decree is generally presumed to exist, said decree is only entitled to such
presumption upon an affirmative showing, by the party seeking enforcement, that
said decree was so issued by a court of general jurisdiction.        See generally 50
C.J.S. Judgment § 1035 (1997) (citing Baio v. Mangano, 9 N.Y.S.2d 276, 277, 256
A.D. 831 (1939); Traders Trust Co. v. Davidson, 178 N.W. 735, 146 Minn. 224
(1920)). As our sister states have phrased the requirement best: “In order to be



                                                                                           Page 5
entitled to comity, the record must show the foreign judgment partook of the
elements which would support it if it had been obtained in this state.” Popper v.
Popper, 595 So.2d 100, at 103 (Fla. App. 5th Dist., 1992). In short, common sense
requires that for any court to recognize a foreign decree, the substance of that decree
must be proven, or at least be open to such a plain and obvious interpretation as to
be susceptible to judicial notice pursuant to the Rules of Evidence. See Tenn. R.
Evid. 202.



             To the extent that either party to this case places reliance upon the
Japanese decree, such reliance is misplaced because of the failure of the proof to
establish the terms of the decree consistent with the rule of comity. Since the
elements of the rule of comity were not satisfied by either party and the terms of the
Japanese decree were neither registered under sections 26-6-101, et seq., nor in any
other manner proven in the record, the trial court was correct in dismissing both the
petition of Tina Nong Maberry and the cross-petition of Ricky Wayne Maberry.
Such dismissal shall not, however, preclude either party from seeking to gain
recognition or enforcement of the Japanese decree by proper proceedings.


           The judgment of the trial court is affirmed as modified and remanded for
such further proceedings as are necessary. Costs on appeal are taxed equally to the
parties.


                                 _____________________________________
                                 WILLIAM B. CAIN, JUDGE



CONCUR:


__________________________________
WILLIAM C. KOCH, JR., JUDGE




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__________________________________
PATRICIA J. COTTRELL, JUDGE




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