First District court of Appeal issues unpublished family law opinion. German dissolution judgment prevails. Foreign law is not repugnant to California public policy.

In re the Marriage of SIEGFRIED
(San Francisco City & County
Super. Ct. No. FDI-08-767688)

Though married in California, Siegfried Ruppert and Patricia Buse were both
German citizens and had a German-language prenuptial agreement. When their marriage
deteriorated, Buse sought dissolution in Germany. She obtained a final judgment of
dissolution, which, according to her, not only resolved the couple’s status, but decided
property division questions in accord with the prenuptial agreement. Although Ruppert
participated in the German proceedings, he has steadfastly maintained he was never
properly served. He also contends the German judgment is far narrower than Buse would
have it, and does not in fact address property division. As a result, while the German
proceedings were pending, Ruppert filed and has since maintained a dissolution action in
California. The California trial court initially stayed Ruppert’s action in light of the
German proceedings. Once the German proceedings became final, the trial court granted
Buse’s motion to quash, gave recognition to the German judgment, and dismissed all
“non-children” issues. Ruppert appeals this order. We conclude the trial court
appropriately granted comity to the German judgment and affirm.
Ruppert and Buse, both citizens of Germany living in the United States, married in
San Francisco on May 17, 1997.
Two days before, on May 15, 1997, they entered into a prenuptial agreement. The
agreement was in German and was recorded before a German consular official in San
Francisco. The agreement, which cites various German statutes, but not those of
California, “exclude[s] the statutory matrimonial property regime and” instead adopts
“the matrimonial property regime of the separation of property pursuant to § 1414 BGB.”
It also addresses postdissolution spousal support, essentially decreeing there would be
Nine years later, in August 2006, Buse petitioned for dissolution in a German
family court. She attached a copy of the prenuptial agreement.
Ruppert claimed he obtained notice of the action in early August 2007, when his
son found and delivered to him a copy of the petition that had been left in an internal
walkway in front of Ruppert’s San Francisco apartment. A process server declared he
made contact with Ruppert using the apartment building’s intercom system on July 31,
2007, and, following Rupert’s instructions, slipped a copy of the petition under the
apartment building’s main door.
On August 1, 2008, Ruppert filed his own petition for dissolution—the instant
action—in San Francisco Superior Court. The petition sought joint custody of the
couple’s children, spousal support, and a determination of property rights. It was
personally served on Buse the date it was filed.
Buse, by what she termed a special appearance, moved to quash and, alternatively,
to stay or dismiss Rupert’s petition, because of the prior German proceeding and because
she viewed California as an inconvenient forum under the doctrine of forum non
conveniens. Buse claimed the already-pending German proceeding was for the “same
cause” between the “same parties” (Cal. Rules of Court, rule 5.121(a)(2)); Germany’s
courts, she argued, were first to acquire jurisdiction, and California’s courts should
accordingly stand aside. Moreover, given the numerous German connections, Buse
contended a California forum would be inconvenient. (See Code Civ. Proc., § 418.10,
subd. (a)(2).)
Ruppert opposed the motion, claiming the German action was not prior to the
California action (because of allegedly defective service) and claiming California was the
more convenient forum. In arguing California was the better forum, he claimed only
California courts had jurisdiction over child support and child custody matters.1 He also
claimed if the German courts “invalidate[]” the prenuptial agreement, spousal support
would have to be litigated in California. He did not contend, at that time, though, that
German courts would lack jurisdiction over property division, nor did he contend the
German proceeding did not at least raise the same issues of spousal support and property
division as his California proceeding.
The California family court, noting the question of proper service was still
pending before the German court, stayed proceedings “until [the] German Court [has] . . .
determined that there is valid service under California Law.” If service were proper, the
trial court stated “the motion to quash i[s] granted.”
In December 2008, the German family court issued a judgment decreeing Ruppert
and Buse divorced and rejecting the claim for “property increment.”2 In a statement of
reasons, the court concluded German court jurisdiction was proper given both Ruppert
1 The parties have since agreed resolution of support or custody for their two
California-born children should be resolved in California courts.
2 Had Ruppert been entitled to property division, he could have sought discovery
from Buse regarding her assets in a process called “increments.”
and Buse were German nationals. The court rejected Ruppert’s claims of defective
service and, giving effect to what it viewed as the parties’ valid and enforceable
prenuptial agreement, denied Ruppert a payment of “equalization” of “pensions” or
“accrued gains” following the marriage.3 It also expressed surprise at Ruppert’s
challenge to the denial of equalization provided for in the prenuptial agreement, as “there
are not any recognizable disadvantages from the marriage” given Ruppert “works as an
attorney after getting a second degree in the United States.4
Nearly a year later, the Berlin Court of Appeals affirmed the judgment. The main
issue on appeal was whether Ruppert was properly served. However, the court found no
need to address whether service by leaving the petition for retrieval at Ruppert’s
apartment building complied with California law, as any defects in service were cured
under a German Code of Civil Procedure provision by evidence Ruppert actually
obtained, from his son, the materials left for him and was on notice of the German
proceeding as of August 2007. The appellate court further held the Hague Treaty on
delivering court and out-of-court documents abroad in civil and commercial cases did not
preclude it from considering the potentially defective service cured, and that employing
the “cure” provision of its Code of Civil Procedure vindicated Germany’s important
interest in not having trivial formalities prevent just resolution of cases on their merits.
3 The assertion in the declaration of Ruppert’s German counsel that the court did
not rule on the validity of the prenuptial agreement is patently incorrect, and we cannot
accept this attorney’s misleading characterization of the German court’s ruling, which we
have in translated form and can read for ourselves. (Societe Civile Succession Richard
Guino v. Redstar Corp. (2007) 153 Cal.App.4th 697, 701 [interpretation of the language
of a foreign court written judgment is for appellate court to review de novo].) The
validity of the agreement was integral to the German family court’s denial of equalization
and denial of discovery into Buse’s assets.
4 Documents filed with the San Francisco court in 2010 show Ruppert making
nearly $250,000 a year as an attorney at a large, well-known law firm.
In September 2011, the German Federal Supreme Court issued an order summarily
affirming the Berlin Court of Appeals.
With the German proceedings concluded, Buse, in October 2012, asked the
California family court to dismiss all “non-children related issues” and to register and
enforce, as necessary, the then-final German dissolution judgment. Following a hearing,
the family court granted Buse’s motion to quash, dismissed “non-children related issues,”
registered the various German judgments and orders, and retained jurisdiction for
Ruppert timely appealed.


A respondent in family court “may move to quash the proceeding, in whole or in
part, for . . . reasons” including a “[p]rior judgment or another action pending between
the same parties for the same cause.” (Cal. Rules of Court, rule 5.63(a)(2); see former
Cal. Rules of Court, rule 5.121 [allowing the same motion before a renumbering effective
January 1, 2013]; see also Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, 724
[noting the provision was also found in former Cal. Rules of Court, rule 1230].) That
“[t]here is another action pending between the same parties on the same cause of action”
is also a ground for demurrer in an ordinary civil action. (Code of Civ. Proc., § 430.10,
subd. (c); see Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 895; Plant
Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787.) The doctrine
embodied in these enactments—abatement—is the flipside of another doctrine, res
judicata, which bars relitigation of matters finally resolved in other actions. (Hamilton v.
Asbestos Corp., (2000) 22 Cal.4th 1127, 1146 [viewing pleas in abatement under section
430.10, subdivision (c), and res judicata as both preventing the splitting of causes of
Outright abatement is disfavored, and the “same parties for the same cause”
language, found in both California Rules of Court, rule 5.63 and Code of Civil Procedure
section 430.10, “has been strictly interpreted” so that dismissal is only appropriate when
“ ‘(1) . . . both suits are predicated upon the same cause of action; (2) . . . both suits are
pending in the same jurisdiction; and (3) . . . both suits are contested by the same parties.’
” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176 [interpreting Code of
Civil Procedure provision].)
Nevertheless, even when the two suits are in different jurisdictions, “the principle
of comity may call for a discretionary refusal of the court to entertain the second suit
pending determination of the first-filed action.” (Gregg v. Superior Court (1987)
194 Cal.App.3d 134, 136; see also Leadford v. Leadford (1992) 6 Cal.App.4th 571, 575
[stay, not outright dismissal]; In re Marriage of Gray (1988) 204 Cal.App.3d 1239,
1249–1250 [“ ‘ “the court in which the second action is brought may in its discretion stay
or suspend that suit, awaiting decision in the first one, or, influenced by a spirit of comity,
may refuse to entertain it, if the same relief can be awarded in the prior suit” ’ ”], italics
Furthermore, comity might then permit application of res judicata to determine
what can and cannot be litigated once the first suit is complete. (Thomson v. Continental
Ins. Co. (1967) 66 Cal.2d 738, 746 & fn. 4; see also Levin v. Ligon (2006)
140 Cal.App.4th 1456, 1475 [employing comity to give effect to a foreign judgment];
Simmons v. Superior Court of Los Angeles County (1950) 96 Cal.App.2d 119, 122–124;
accord, Laker Airways, Ltd. v. Sabena, Belgian World Airlines (D.C. Cir. 1984) 731 F.2d
909, 939 [“Comity ordinarily requires that courts of a separate sovereign not interfere
with concurrent proceedings based on the same transitory claim, at least until a judgment
is reached in one action, allowing res judicata to be pled in defense.”]; see also Code Civ.
Proc., §§ 1715, subd. (b)(3)(B), 1723 [comity may be used to recognize a foreign
judgment, including one for dissolution or otherwise involving domestic relations].)
More broadly, “[t]he doctrine of comity prescribes that a court of this nation
recognize the judgment of a court of a foreign nation when the foreign court had proper
jurisdiction and enforcement does not prejudice the rights of United States citizens or
violate domestic public policy.” (In re Stephanie M. (1994) 7 Cal.4th 295, 314
(Stephanie M.).) “United States courts have said that they are deferring to foreign
proceedings or adjudications as a matter of ‘comity’ in at least three different contexts.
In one context, the domestic court considers whether to proceed with litigation properly
within its jurisdiction because of the pendency or availability of litigation in a foreign
forum. [Citations.] When domestic courts in that context say that they are deferring to
foreign tribunals as a matter of ‘comity,’ [citation], they are invoking a doctrine akin to
forum non conveniens. . . . [¶] In a second context, a domestic court considers whether to
enforce a foreign judgment. [Citations.] Here too domestic courts say that the issue of
whether to defer to the foreign tribunal’s adjudication of the underlying matter is a matter
of ‘comity.’ [Citations.] . . . [¶] In a third context, . . . a domestic court considers
whether to accept the adjudication of a foreign tribunal on a cause of action or a
particular issue [citations] . . . as a matter of ‘comity.’ ” (Diorinou v. Mezitis (2d Cir.
2001) 237 F.3d 133, 139–140, fn. omitted.)5
Here, the trial court initially stayed proceedings under the first “prong” of comity
discussed above. This discretionary act is not under review. Later, the trial court gave
effect to the German dissolution judgment, employing the other prongs of comity.
We review the ultimate decision to extend comity for an abuse of discretion.
(Stephanie M., supra, 7 Cal.4th at p. 314.) Although the ultimate decision to extend
comity is discretionary, the interpretation of another court’s judgment and the
determination of a judgment’s preclusive effect are generally questions of law we review
de novo. (Societe Civile Succession Richard Guino v. Redstar Corp., supra,
5 Thus, foreign judgments can be “recognized” for the purpose of enforcement (as
in the case of a money judgment) or “recognition may also be sought so that a party may
rely on res judicata or collateral estoppel principles.” (Manco Contracting Co. (W.W.L.)
v. Bezdikian (2008) 45 Cal.4th 192, 205–206.)
153 Cal.App.4th at p. 701 [interpretation of the language of a foreign court written
judgment]; City of Oakland v. Oakland Police & Fire Retirement System (2014)
224 Cal.App.4th 210, 228 [“Whether the doctrine of res judicata applies in a particular
case is a question of law which we review de novo.”]; accord, Diorinou v. Mezitis, supra,
237 F.3d at p. 140.)
Ruppert first asserts the California trial court was required to deny comity to the
German judgment entirely because (1) Buse’s “fraud,” in allegedly not disclosing to the
German courts the true nature of her assets and debts, prevented Ruppert from having a
full opportunity to present his case; (2) the German judgment is repugnant to policies of
California because it issued without Ruppert being properly served under California law;
(3) the German forum was seriously inconvenient; and (4) the German proceedings
lacked due process.
There was no error or abuse of discretion. To start, issues concerning service,
procedure, convenience, and opportunity to participate are mooted by Ruppert’s actual
participation, at least through counsel, in the German proceedings. Ruppert asserts the
German statute allowing defective service to be cured is unique and unfair. Yet
California case law also allows just that, and for sound reasons of judicial economy and
fairness. In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135, holds that if a defendant
makes, himself or through counsel, a general appearance—that is, gives some recognition
of the court’s authority to proceed—defects in service will be considered cured. Ruppert
unquestionably made a general appearance in the German proceedings when he requested
property increments, argued for equalization, and contested the validity of the prenuptial
agreement. Thus, under either German or California law, service was adequate6 and the
6 Ruppert fixates on the California trial court’s statement it would grant Buse’s
motion to quash if the German courts decided there had been valid service under
California law. This statement did not impose upon the California courts, as Ruppert
contends, a requirement to deny Buse’s motion if the German courts made no such
determination. Nor did it preclude the California courts from granting the motion in the
German courts had jurisdiction.7 There is, furthermore, no evidence the German courts
failed to offer Ruppert a fair judicial process or that Ruppert was prejudicially hindered
by having to face proceedings in the country in which he holds citizenship.
In addition, there is no evidence Buse procured the German judgment by fraud so
as to deprive Ruppert of a fair hearing. Even if Buse made misstatements regarding her
assets, the existence or value of any particular asset was apparently irrelevant to the
German courts, as they concluded a division of property was not called for given the
parties’ valid prenuptial agreement. Moreover, Ruppert “was not prevented from
participating in [his] dissolution action” and had every opportunity to “guard against” any
relevant misstatements at the time. (In re Marriage of Thorne & Raccina (2012)
203 Cal.App.4th 492, 505 [rejecting a claim a prior judgment obtained by extrinsic fraud
or mistake].) Finally, Ruppert’s loss in the German courts of his motion for asset
discovery—for property increments—by no means establishes a fraud by Buse or a
deprivation of due process.
Given all this, and given the parties’ connections to Germany, the trial court’s
decision to extend comity to the German judgment was neither an abuse of discretion nor
Ruppert next contends the California trial court, even if comity were appropriate,
gave the German judgment greater preclusive effect than due. According to Ruppert, the
German proceedings were far narrower than the California proceedings, and the
California trial court should have realized the German proceedings, even when final, left
open several issues the California courts should still rule upon.
wake of other developments, such as the German courts’ finding service was adequate or
cured under the laws it deemed applicable.
7 Ruppert asks us to disregard the German Supreme Court’s decision in the
German proceedings on the question of whether service was proper under German law.
The request is baseless.
To be sure, the German proceedings did not address issues related to the couple’s
children, but both Ruppert and Buse agree those should be put to a California court.
More to the point, claims Ruppert, he asked the California court to address “nonchildren-
related issues . . . not brought by [Buse] or [Ruppert] in the German”
proceedings, such as marital property, spousal support, financial issues, intellectual
property issues, “inter-marital agreements,” and the validity of the prenuptial agreement.
Again, the trial court did not err or abuse its discretion. First, the German courts
plainly addressed non-children issues relating to property division, finding the prenuptial
agreement valid (despite Ruppert’s various arguments against it), denying equalization,
and denying further discovery on Buse’s assets. Ruppert, himself, foretold the German
courts might render an opinion on the prenuptial agreement in his brief opposing Buse’s
original motion to quash. This is not a case where the German courts addressed
dissolution only, leaving property matters to other courts. (See Faught v. Faught (1973)
30 Cal.App.3d 875, 878 [“Under the concept of divisible divorce, financial responsibility
and marital status may be separately litigated at different times and in different
Second, even if the German proceedings left some matters unresolved, Ruppert
has not sufficiently identified them. If property were truly left in “limbo” as Ruppert
asserts, it would be his burden as appellant to identify that property and to demonstrate
how the California trial court’s failure to divide it was prejudicial error requiring reversal.
(Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) [“[W]e cannot presume
prejudice and will not reverse the judgment in the absence of an affirmative showing
there was a miscarriage of justice.”]; Federation of Hillside & Canyon Associations v.
City of Los Angeles (2000) 83 Cal.App.4th 1252, 1265 [rejecting argument raised in
conclusory fashion].) Ruppert’s description of unresolved issues in the vaguest possible
terms, employing categories such as “marital property,” does not meet his appellate
burden. The only particular asset he arguably mentions as left in limbo (arguably,
because he mentions it only in a statement of facts, not in connection with his arguments
regarding the narrower scope of the German proceedings) is a “joint marital home” to
which Buse referred in her declaration to the German courts. Thus, the property was
before the German courts. Moreover, there is no discussion, let alone cited record
evidence, of who currently owns the home and whether any court action is actually
required. (Cf. In re Marriage of Moore & Ferrie (1993) 14 Cal.App.4th 1472, 1481 [a
specific pension determined to be community property was obviously omitted from an
otherwise comprehensive Ohio state judgment of dissolution, and it could be divided in a
subsequent California action].)
Even had Ruppert articulated specific unresolved matters requiring California
court intervention, which he has not done, Ruppert has failed to show he did anything to
have the German courts rule on those matters. Beyond that, Ruppert has made no
argument the German courts lacked the authority to reach any such issue. Under basic
principles of res judicata, a final judgment precludes relitigation of matters which were
raised or could have been raised in the first action. (In re Marriage of Mason (1996)
46 Cal.App.4th 1025, 1028; In re Marriage of Thomas (1984) 156 Cal.App.3d 631, 638.)
This is generally so for divorce judgment as well (ibid.), except res judicata does not bar
division of community property assets not resolved in an initial judgment. (See In re
Marriage of Moore & Ferrie, supra, 14 Cal.App.4th at pp. 1481–1482; Fam. Code,
§ 2556 [codifying this continuing jurisdiction of family courts].) As just noted, however,
Ruppert has not established the existence of any specific community property assets left
unresolved by the German proceedings which require the attention of the California
courts, and so cannot take advantage of this exception on appeal. Indeed, insofar as there
might have been community property, the German proceeding adopted the parties’
prenuptial agreement and therefore ruled out the existence of such community property,
denying “equalization” of “accrued gains.” (See In re Marriage of Thorne & Raccina,
supra, 203 Cal.App.4th at p. 502 [where prenuptial agreement resolves property issue,
there is no community property issue left to resolve].)
And further, assuming German law, and not California law, governs our
determination of the German proceeding’s res judicata effects (see Beroiz v. Wahl (2000)
84 Cal.App.4th 485, 494; 7 Witkin, California Procedure, Judgment § 356 (5th ed. 2008),
at p. 973; but see Alfadda v. Fenn (S.D.N.Y. 1997) 966 F.Supp. 1317, 1329–1330 [“a
federal court should normally apply either federal or state law, depending on the nature of
the claim, to determine the preclusive effect of a foreign country judgment”]), it would be
Ruppert’s appellate burden to demonstrate how German law would require reversal of the
trial court’s ruling, which we presume is correct regardless of its reasoning. (Sommer v.
Gabor (1995) 40 Cal.App.4th 1455, 1470 [no prejudicial error absent demonstration of
what foreign law would have required].) Ruppert has not attempted to do so.
Finally, Ruppert spends a number of pages in his appellate briefs attacking the
validity of the parties’ prenuptial agreement. In the California trial court, Ruppert never
made such a challenge in connection with opposing Buse’s motion to quash. “It is well
established that issues or theories not properly raised or presented in the trial court may
not be asserted on appeal, and will not be considered by an appellate tribunal. A party
who fails to raise an issue in the trial court has therefore waived the right to do so on
appeal.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)
Even if the issue were not waived, Ruppert’s challenge to the validity of the
prenuptial agreement based on procedural defects8 is nothing more than a collateral attack
on the German proceedings, in which the agreement was plainly held valid and
enforceable. Such collateral attacks are ordinarily precluded by the species of res
judicata known as collateral estoppel or issue preclusion—at least under United States
8 Ruppert contends the prenuptial agreement did not comply with various
formalities imposed by Family Code sections 1610–1617.
and California law. (See Taylor v. Sturgell (2008) 553 U.S. 880, 892; People v. Garcia
(2006) 39 Cal.4th 1070, 1077.) Ruppert again has offered no contrary German law.
Moreover, we see no abuse of discretion insofar as the California trial court’s
orders recognize and give effect to this aspect of the German judgment under principles
of comity. The prenuptial agreement’s validity was actually litigated in Germany. In
fact, the German family court’s statement of reasons shows there were multiple filings
from Ruppert regarding the issue, and it shows the German court addressed and rejected
Ruppert’s contentions the agreement was against morals, he was rushed into signing, and
he suffered from having an inferior bargaining position. Here on appeal, Ruppert’s
challenges to the agreement are solely procedural, and he cites no particular injustice or
hardship he faces or might face under it. Ruppert’s actual participation in the German
proceedings, the lack of a challenge to the legitimacy of the German judiciary, the lack of
an identified substantive unfairness in the agreement, and the need for finality all support
the conclusion the trial court’s application of comity was neither an abuse of discretion
nor error. (See Huntington v. Huntington (1953) 120 Cal.App.2d 705, 710 [if defendant
“did participate in [a foreign divorce] action . . . the defendant is inhibited from making a
collateral attack upon the decree]; Chaudry v. Chaudry (N.J. Super. Ct. App. Div. 1978)
159 N.J.Super. 566, 576 [“An analysis of the opinion of the appellate court in Pakistan
satisfies us that the validity of the divorce was amply litigated and determined there in
that country” such that comity should be granted.]; see generally Stephanie M., supra,
7 Cal.4th at p. 314.)9
9 Even if the German courts were operating under German law in assessing the
prenuptial agreement’s validity, and even if that law differs from California’s statutory
protections (see supra, note 9), that would not mean comity should be denied. (Java Oil
Ltd. v. Sullivan (2008) 168 Cal.App.4th 1178, 1192 [“That there is a difference in the law
of the two countries does not show that the [foreign] law applied is repugnant to
California public policy.”].)
The family court’s order is affirmed. Respondent to have costs on appeal.
Banke, J.
We concur:
Humes, P. J.
Dondero, J.


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